1 Tuesday, 17 October 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.15 p.m.
5 JUDGE MOLOTO: Good afternoon. I believe we are supposed to have
6 some housekeeping, some responses from the Defence, I would imagine.
7 MR. MILOVANCEVIC: [Interpretation] Your Honours, I do apologise.
8 I didn't have my headphones on and I just now realised that you had
9 already addressed us. I apologise.
10 As regards yesterday's issue of the disclosure of the ex parte
11 segment of our motion related to the witness, I have checked the
12 situation, Your Honours, and it is completely in conformity with the
13 Rules. The Defence is not under the obligation according to the Rules to
14 actually submit to the Prosecution the address of the witness, and that is
15 the only part which is ex parte, which is in full compliance with the
16 Rules and we shall stick to that position. That is one thing.
17 As regards this second question which is the issue of deadlines
18 and the content of statements according to Rule 95 ter, overnight we
19 studied in detail all the Rules which govern this subject matter and we
20 have submitted a submission in that connection to you today which will be
21 received by the Chamber today, so that we do not feel that we should
22 actually discuss it in oral form in order not to waste time during this
24 The Defence has prepared copies of this submission for the Trial
25 Chamber, for the colleagues from the Prosecution, and these are two
1 motions, two submissions which refer both to the ex parte obligation of
2 disclosure of particulars in relation to the witness, as well as to the
3 82(F) issue. Can I ask the usher to please distribute these copies to the
4 Trial Chamber and to the colleagues from the Prosecution?
5 JUDGE MOLOTO: Just so that we understand one another, you have
6 referred to two Rules which I'm not aware of. You referred to 95 ter and
7 82(F). It doesn't look like there is a 95 ter in the Rules, it doesn't
8 look like there is a -- -- just give me --
9 MR. MILOVANCEVIC: [Interpretation] Your Honours, it was
10 inadvertently that I said 95 ter. I meant 92 ter, of course.
11 JUDGE MOLOTO: 92 ter, as you will understand from the new Rule is
12 dependent on 92 bis and 92 bis requires you, in subparagraph B thereof
13 that the statement of the witness must be -- the declaration must be
14 witnessed by a person authorised to witness such a declaration in
15 accordance with the law and procedure of the state or a presiding officer
16 appointed by the registrar of the Tribunal for that purpose. And B or 2,
17 that the person witness in the declaration verifies in writing all those
18 things. That the person making the statement is the person identified in
19 the said statement, that the person making the statement stated that the
20 contents of the written statement are to the best of his personal
21 knowledge and believe true and correct.
22 So and if you read -- that's 92 bis. Now, if you look at 92 --
23 what was I -- 92 ter in its new form, it says, the Trial Chamber shall
24 decide after hearing the parties whether to require the witness to appear
25 for cross-examination, if it does so decide, the provisions of Rule 92 ter
1 shall apply.
2 Now, this is C, paragraph C of 92 bis, okay. The provisions of 92
3 ter shall apply. And 92 ter then says a Trial Chamber may admit in whole
4 or in part that evidence, and this statement in terms of 92 ter comes from
5 92 bis. And 92 bis prescribes those formalities that I've mentioned to
6 you. And it can only be so because now the 92 ter statement is now going
7 to talk not only about general things but it also talks about the acts and
8 conduct of the accused as charged.
9 So it can only be under oath.
10 I don't know whether you -- am I misunderstanding the situation?
11 MR. WHITING: Your Honour, if I may I might be able to a -- if I
12 may address this just briefly.
13 Your Honour, I'm not sure about Your Honour's reading of the
14 provisions. I'm not sure. I haven't looked at it quite that way. It's
15 the first time I've thought about it that way, that is the
16 inter-relationship between 92 bis and 92 ter and I have to give that some
17 thought. I had rather read it otherwise which is that the formal
18 requirements of 92 bis do not apply in the case of 92 ter because the
19 witness comes into court and is under oath and says -- starts off his
20 testimony saying this written statement is what I would testify to. So
21 that in a sense takes care of the formal requirements which are contained
22 in 92 bis. That's how I had read it but I had not considered Your
23 Honour's reading and would have to take sometime.
24 I see that the Defence has filed a written motion or response on
25 this issue. I think it's sufficiently complicated that it perhaps might
1 be worth us taking sometime to consider what they have filed, us meaning
2 the Prosecution, and perhaps not take more time orally on it. I think it
3 can be dispensed with that way.
4 With respect to the ex parte issue though I would like to address
5 that briefly if I may. There, I think with respect, I think Defence has
6 counsel misunderstood the issue. The issue is not, as Defence counsel has
7 stated both orally and also in the written submission that he just
8 provided to us, it is not whether the Defence has an obligation to provide
9 the Prosecution with certain particulars of witnesses. I agree they do
10 not have that obligation. That's not the issue, however. The issue is
11 that they -- is when they can provide something to the Trial Chamber
12 without providing it to the Prosecution. The Rule, as I understand it, is
13 that when we provide things to the Trial Chamber, they must be provided to
14 the opposite party unless, there is a good reason for it to be provided ex
15 parte. The Defence has not provided a good reason why we should not be
16 given that ex parte filing. And it is their burden to demonstrate why, if
17 they give it to the Trial Chamber, why we cannot have it. Having failed
18 to do that, having been given an opportunity and having failed to do that,
19 they should be ordered to give it to us, as a matter of principle.
20 JUDGE MOLOTO: There you go, Mr. Milovancevic.
21 JUDGE NOSWORTHY: I wanted to ask Mr. Milovancevic a question
22 because my understanding is that the decision to make the annex ex parte
23 and not to disclose and deliver to the OTP was based on precedent as a
24 result of practice. I believe that learned counsel had referred to an
25 authority, but my addressing the rules it does not seem as if there is a
1 Rule that would give the authority for this. What is your authority, Mr.
2 Milovancevic? Is it something in the rules or is it just a question of
4 MR. MILOVANCEVIC: [Interpretation] Your Honours, we draw both on
5 the rules and jurisprudence. The colleague Prosecutor failed to submit to
6 us precisely this -- these data which are in the ex parte submission, that
7 is to say the address, the telephones and other particulars for a whole
8 series of witnesses. So all we are doing is endeavouring to ensure such
9 conditions as will induce the witnesses to indeed agree to come and appear
10 in this Court, and I believe that that is in the basic interest of this
11 case and of this Chamber. The witnesses feel jeopardised for definite
12 reasons, so they are asking us when their safe conduct is in question,
13 that their addresses are not submitted to the colleagues from the
14 Prosecution because this is what the witnesses do not want.
15 On the other hand, Your Honours, we have had some bad examples as
16 regards the attitude of the Prosecution's investigators towards our
17 witnesses because in our impression, some sort of pressure was exerted on
18 our witnesses, they were asked to give subsequent statements to the
19 Prosecution, without us having been contacted previously. And even
20 through the police, this was sought to be elicited, which is out of the
21 ordinary. Now, we have overcome that question. I'm not raising this in
22 order to broach a new issue. I'm just trying to explain why we did what
23 we did. So we had exactly the same material submitted to the Trial
24 Chamber and to the colleagues in the Prosecution. The only thing which
25 they do not have which is ex parte is this particular, which we do not
1 wish to disclose and deliver for the reasons I've just explained.
2 JUDGE NOSWORTHY: What about the Rule? Up to now in your
3 explanation, you haven't provided me with the Rule which to me would be
4 material. All that you have said, I'm waiting to hear which is the
5 relevant Rule.
6 MR. MILOVANCEVIC: [Interpretation] Your Honours, there is no
7 provision in the Rules which directly governs this subject matter, but
8 there is a provision in 89(F) which regulates the question of work with
9 witnesses and it says, I believe it is 89(B), I can check, it says that in
10 dealing with witnesses, the practice which is in keeping with the
11 interests of justice will be applied and which is in keeping with the
12 spirit of the rules of the Tribunal. Rules and statute of the Tribunal.
13 If it is in our interest, and it is, for the witnesses to appear, and if
14 some particulars about witnesses from the practice of the Prosecution,
15 have been withheld from the Defence, we fail to see why such practice, and
16 this particular provision of that particular Rule, should not be
17 interpreted in a way which would be conducive to the coming of witnesses
18 to appear before this Court.
19 JUDGE NOSWORTHY: 89(F)? Or (B) rather says [Microphone not
20 activated] Rules of evidence which best favour a fair determination of the
21 matter before it, and are consonant with the spirit of the Statute and the
22 general principles of law. It says in cases not otherwise provided for in
23 this section a Chamber shall apply rules of evidence, et cetera. So that
24 is what that is dealing with. But I believe Judge Moloto wishes to say
1 JUDGE MOLOTO: I do indeed have something to ask. First of all
2 Mr. Milovancevic, I just want to ask you one or two points. You say that
3 the Prosecutor or the Prosecution approached some of your witnesses
4 without your prior knowledge and what have you. Was this after they --
5 the Prosecution had known that those are your witnesses or were they still
6 just people at large and they were looking for witnesses? At what stage
7 were they approached?
8 MR. MILOVANCEVIC: [Interpretation] Your Honours, I don't know
9 whether the colleagues from the Prosecution knew that the mentioned people
10 were witnesses at the time they approached them, but in the concrete
11 instance, the witnesses told them that they had already given us a
12 statement but despite that, they continued to exert pressure on them to
13 come and be witnesses for the Prosecution. It is only upon that happening
14 that the Defence intervened by telling our colleagues that the Prosecution
15 had already submitted a list of their witnesses and had prepared their
16 detailed and final versions of briefs, and that in such a situation, such
17 a request directed at our witnesses was illegitimate. Of course, later
18 they actually dropped that demand in respect of two specific witnesses.
19 JUDGE MOLOTO: Okay. I can't take that point much further until
20 and unless we hear further from the opposite side. Let me ask you the
21 next question or let me raise the next issue. You say that there is no
22 rule and you're looking at jurisprudence and that the Prosecution also did
23 not give you particulars of some of their witnesses. Now, I don't know or
24 I don't remember the circumstances and I'm not suggesting you're not --
25 they didn't do so. They may very well have done so. If I understand Mr.
1 Whiting's argument, in such a case where particulars are not given,
2 reasons are given in the motion why those particulars are not given. So
3 that the party who does not receive the particulars can see in the motion
4 why he's not receiving the particulars. And as I understand his argument,
5 he's saying, in this case, the Defence has not done so, has not given
6 reasons why they should not be obliged to disclose the particulars of the
7 particular witness, and in that event, then he argues that normal practice
8 should take place.
9 I should just say that you can't say because the Prosecution did
10 it we are also doing it, without following the proper procedures, and if
11 it is indeed so that where the particulars are not disclosed, and are
12 given ex parte, that reasons are given for that, then you should be able
13 to give those reasons before you -- together with the filing, not from the
14 bar as you are standing there and saying, oh, no the reason we are doing
15 is this because the Prosecution has approached our witnesses, the reason
16 we are doing this is because they have done it before. Mention those in
17 the motion. Now, it may very well be that you have mentioned those
18 reasons in the motion. I don't have any recollection of the motion.
19 MR. MILOVANCEVIC: [Interpretation] That is exactly what I was
20 about to say, Your Honours. Before today's submission of our learned
21 colleague from the Prosecution, we submitted to you now a written
22 submission about that particular situation, even before our colleague from
23 the Prosecution actually complained about the situation, we submitted this
24 written submission to the Trial Chamber precisely on that account and for
25 that reason. That is the first of the two submissions.
1 JUDGE MOLOTO: But you're not absolutely correct there, Mr.
2 Milovancevic. This issue was raised yesterday and you filed this filing
3 today. So you are filing it after they have raised the issue. Yesterday,
4 we postponed this issue because you were going to investigate it, after
5 they had raised it. You cannot now say today's filing was filed before
6 they raised the issue.
7 MR. MILOVANCEVIC: [Interpretation] Your Honour, please take into
8 account one thing: This is maybe our 14th or 15th witness. We haven't
9 had any such complaints so far. Why does this appear as a contentious
10 issue? Because such practice prevailed during the whole trial. Yes, you
11 are right that we submitted something in writing before the submission of
12 the opposite side in the form that they expressed it today. We did not
13 perceive this as a problem, this issue. This is the only thing that I'd
14 like to say. We had no intention of breaching the rules or establishing a
15 new practice. We -- the Prosecution hasn't reacted to such practice so
16 far in the trial.
17 JUDGE MOLOTO: Again, I have not kept track of every motion that
18 you ever filed, I don't know whether this is the first time you are filing
19 a motion without disclosing these particulars or whether you've done it
20 before and the Prosecution has not objected. The question of the matter
21 is that they are now objecting at this stage and when you now say you have
22 made -- you have filed a filing before they've raised issue, you are not
23 correct. That's all I'm -- I'm responding to you. You are not correct
24 because the issue was raised yesterday. Now, instead of addressing that,
25 you jump into the next one and say this is the 14th witness, you have been
1 doing it all the time. I can't really be running after every little
2 reason that you give because your previous answer has not now been
4 I think you got to give your reasons once and for all and we argue
5 those reasons all at a time, not give reasons when the one fails, you
6 know. I don't know why the Prosecution, if indeed they have been
7 accepting these filings without particulars being given, I don't know why
8 they are objecting today. They probably have a good reason. They are
9 here to tell us. Mr. Whiting?
10 MR. WHITING: Well, Your Honour, on that issue I'm not sure if
11 it's a good reason or not, I just noticed it with this filing. It may
12 have occurred in previous filings and we didn't object to it not -- it
13 wasn't something I was focused on. It's not something I think that if we
14 don't object in an earlier case we waive it. I do accept that perhaps
15 Defence counsel thought that it had become the practice and that he could
16 do it without giving reasons. I understand that. That's fine. However
17 he's now being asked to give reasons and I don't think -- I have not from
18 our point of view -- we have not heard a reason yet why we cannot have the
19 ex parte filing.
20 Now, while I'm on my feet, if I may just address a few other
21 points that were raised, in particular, I would like to address the
22 suggestion or even allegation that we have contacted witnesses and
23 pressured witnesses and so forth. I can state categorically that this
24 team, the Martic Prosecution team, has not made contact with a single
25 Defence witness since we obtained a list of Defence witnesses. That --
1 unless it happened without me knowing about it which would surprise me
2 quite a bit. I'm -- I am certain that that has not happened. I am aware
3 that one witness, one listed Defence witness, was somebody who had agreed
4 to be a Prosecution witness in another case which is being prepared for
5 trial, trial is to start shortly in that other case. That witness was
6 contacted because he had agreed to be a Prosecution witness, he had given
7 a statement to the OTP, signed statement, and he indicated when he was
8 contacted by that other team that he had -- was now a Defence witness in
9 this case. And I believe that was the end of the matter. He was dropped
10 from that other case. I'm not aware of any pressure that was put on him
11 or anything of that sort.
12 But in any event we have not gone out to contact the Defence
13 witnesses. I will say, however, that there is nothing in the Rules or the
14 jurisprudence that prevents us from doing so. We have every right to go
15 and contact Defence witnesses on our own without contacting the Defence.
16 There is no obligation that -- for us to tell the Defence that we are
17 doing that or to do it through the Defence.
18 JUDGE NOSWORTHY: I'm sorry, it's not part of the practice of the
19 Tribunal, you're saying, that when it's known to a party that a witness is
20 the -- a person rather is the witness of the other party, there is no Rule
21 of practice even that requires that he not contact that person?
22 MR. WHITING: There is no consistent rule of practice, Your
23 Honour. There have been practices adopted with respect to particular
24 trials and in some cases, the parties have often times -- what happens is
25 the parties themselves come to an agreement about how they are going to do
1 that, what procedures they are going to follow to contact the other
2 party's witnesses. But as far as I know, there is no consistent practice,
3 no Rule, no jurisprudence, which required -- which would require us, as
4 the Prosecution, to go to the Defence, to tell them that we are contacting
5 their witnesses or to get their permission or to do it through them.
6 JUDGE NOSWORTHY: Could the Defence equally during the course of
7 this trial make contact with the Prosecution witness and not make
8 disclosure to the OTP? Because I would find that highly irregular. I
9 must tell you that I am struggling with that thought violently.
10 MR. WHITING: Well, Your Honour, this is something -- and I
11 understand and I understand Your Honour's reaction and this is something
12 where practice in different national jurisdictions differs quite a lot.
13 And therefore, people who come to the Tribunal come with their own
14 practices and try to -- and tend to try to implement those. For example
15 in my country, there is no -- nothing which prevents the parties from
16 contacting other witnesses and doing so without telling the other party.
17 And I'm aware that practice is radically different in other countries. In
18 any event, if I may say, the point is academic for us because it's not
19 something we have done. And if we had contemplated doing it, I don't know
20 whether I would have told Mr. Milovancevic or not. I never had to reach
21 that issue.
22 JUDGE MOLOTO: I must say -- okay, finish. I'm itching to talk.
23 MR. WHITING: I'm sorry, Your Honour. But in any event, I reject
24 and in fact resent the sort of off-the-cuff oral suggestion that we have
25 somehow acted improperly with respect to the Defence witnesses that we
1 have pressured them and that this is now a justification for this ex parte
2 filing. Those allegations are simply false.
3 With respect to the Rules and a basis for doing this, I do think
4 that Rule 69 is perhaps a basis for withholding information under certain
5 circumstances with respect to witnesses and it has to do with protection
6 of victims and witnesses. And it all -- and this gets into the area of
7 protective measures and protecting the security of witnesses. And the
8 Prosecution, it is true, will at times rely on this Rule to withhold
9 certain particulars about witnesses or delay the disclosure of witnesses
10 to the Defence. However, I don't think that this is a case where the two
11 sides, it's not a parallel, it's not parallel. What we do when we
12 disclose things to the Defence, it is not comparable to when the Defence
13 is disclosing things to us. So I don't think the Defence can rely on
14 things that we have done in the past.
15 JUDGE MOLOTO: What's the difference?
16 MR. WHITING: The difference, Your Honour, is that when we
17 disclose information, we are disclosing it to the Defence and we are
18 disclosing it to the accused and that's the difference. When the
19 Defence -- there is no accused war criminal sitting on this side of the
20 courtroom and I don't mean that with any disrespect. It's just whether
21 you're talking about witness security measures that is a relevant
22 difference and it is the basis for why we at times are able to delay
23 disclosure or withhold certain particulars, such as personal details of a
24 witness, address, because it's being disclosed not just to the Defence but
25 also to the accused, and that may raise security considerations with
1 respect to the witnesses. I cannot imagine what security situation arises
2 why the witnesses are endangered in any way if the information is
3 disclosed to us. I don't see it.
4 JUDGE MOLOTO: Now, Mr. Milovancevic, I have a few clarification
5 issues to raise with you. If you can just give me a chance, if you don't
7 I said I'm itching to talk and I said so simply because I just
8 found that statement that you made completely incomprehensible and
9 completely unacceptable in my judicial culture and I could not, and if you
10 say it's academic, I say it is not academic. It is an issue that needs to
11 be decided and decided very clearly in this Tribunal so that the matter is
12 put to rest once and for all. If you say that there are different
13 practices in various Trial Chambers, that is not good enough for me and I
14 think it's something that needs to be decided once and for all.
15 MR. WHITING: Your Honour, just to be clear. With respect to this
16 issue, I'm happy to agree that if we -- if our team makes contact, wants
17 to make contact with any Defence witnesses, I'll let Mr. Milovancevic
18 know. I'm happy to agree to that.
19 JUDGE MOLOTO: Fair enough. That doesn't stop me from just
20 emphasising exactly my feeling about it. It is so important an issue for
21 me that if it is transgressed, I cannot see how it can be said there is
22 fairness in the trial. So, for me, it's a very strong issue. And I'm
23 grateful that in fact you are prepared to talk to Mr. Milovancevic about
24 it if it should happen. I take your point that you say it has not
25 happened. I take your point.
1 MR. WHITING: Your Honour, I understand completely Your Honour's
2 reaction. I have to say though from my culture I see it completely the
3 other way.
4 JUDGE MOLOTO: I understand.
5 MR. WHITING: And even find it --
6 JUDGE MOLOTO: I've heard you.
7 MR. WHITING: And even find it a difficulty and a problem that the
8 parties would -- that parties have a sort of control and a guard over
9 their own witnesses and that they sort of possess them. So there is a
10 cultural difference, but I fully appreciate Your Honour's point of view on
12 JUDGE MOLOTO: I understand, and let me for instance, let me at
13 least say and you'll remember that I asked Mr. Milovancevic whether
14 according to his information, did the -- whether the Prosecution
15 approached his witnesses after the Prosecution had known that those were
16 Defence witnesses. Now, it's a complete no-no for me if the Prosecution
17 does know. It is something else if you stumble across a witness and you
18 discover while you're talking to the witness that he's offered himself to
19 the other side and I would imagine that courtesy would require that one
20 withdraws at that point.
21 However, the reason for that, for saying to me it's a complete
22 no-no is that there is a very high likelihood of information passing from
23 the one side to the other inadvertently which may jeopardise the position
24 of the other and I think it should not happen. That's why I say fairness
25 would not come -- and once a list of witnesses has been given, I think it
1 behooves the other side to respect that list and not approach those
2 people. Accidental meetings are put aside.
3 The other issue now we've kept so much long and this one that I've
4 forgotten, the second issue, I wanted to raise with you. I hopes it comes
5 back to me. Mr. Milovancevic, you wanted to say something?
6 JUDGE NOSWORTHY: There was just one question I wanted to pose to
7 Mr. Whiting.
8 Mr. Whiting, have there, in fact, been instances when there was
9 a motion and ex parte annexes where the information was disclosed to the
10 Trial Chamber and withheld from the Defence?
11 MR. WHITING: Yes. That certainly was done from the Prosecution
12 with respect to protective measures motions. We had at least one
13 protective measures motion where certain details and reasons why
14 protective measures had to be granted were provided in ex parte annexes to
15 the Trial Chamber.
16 JUDGE NOSWORTHY: And you may have provided this information to
17 the Trial Chamber before, but in those instances, what was your authority?
18 Practice merely or --
19 MR. WHITING: No. I would think it's -- it's certainly Rule 69
20 and any other Rules -- I believe there is also one other Rule which I
21 can't put my fingers on at the moment which deals with witness security.
22 But it would have to do with -- it would have to do with that with respect
23 to witness security.
24 JUDGE NOSWORTHY: Now, Rule 69, though, deals with applying to the
25 Trial Chamber in order to do that. It doesn't seem to speak to the party
1 having the right to adopt that course without the leave of the Trial
2 Chamber. Am I having a wrong reading or could you direct me to the
3 relevant portion that would specifically permit you to do that? Because I
4 must admit that I don't see it the way that you're saying.
5 MR. WHITING: Well, no. Your Honour, I do not believe that there
6 is any Rule, at least not one that I'm aware of, which specifically
7 regulates when the parties and under what conditions the parties can file
8 ex parte annexes to the Trial Chamber. I think that the thinking is that
9 it's implicit in the Rule, with respect to witness security, that if we
10 are seeking witness protection measures from the Trial Chamber, and in
11 order to do that have to disclose certain things which if disclosed to the
12 other party could jeopardise that witness, that we can apply to do that ex
13 parte and we have done that ex parte.
14 JUDGE NOSWORTHY: Is it fair to make a distinction between the OTP
15 and the Defence in relation to that Rule merely on the basis that on one
16 side is OTP and that they have less of a propensity to commit acts to the
17 prejudice of a fair trial or to the prejudice of the other party's case?
18 What reason is there?
19 JUDGE MOLOTO: That's the question I was going to ask. That
20 reminds me of what --
21 MR. WHITING: Well, Your Honour, I don't think I would have put it
22 quite like that, that the -- that one side has less or more of a
23 propensity to commit acts to prejudice a fair trial. I really don't --
24 JUDGE MOLOTO: Can I reformulate the question because that's the
25 question I had forgotten? As I understood your argument, precisely
1 because of the presence of the accused on the Defence side, it is felt
2 that the Defence is more likely to jeopardise the security of the witness
3 than the Prosecution would because there is no accused on the side of the
4 Prosecution. That's what you said. Now my question is -- several of them
5 or two of them. When confidential information is given to the opposite
6 side and the opposite side is bound in terms of the Rules not to disclose
7 this to anybody and keep it to themselves and to seek permission of the
8 Chamber before they can disclose it and bind those parties - there is a
9 Rule that says that - is the accused not part of this whole Defence team
10 that must be bound by this? Number 1. And if the accused is not part of
11 that, what is the point of delaying certain, such confidential information
12 until within 30 days of hearing when such information is given, and what
13 is -- what would stop the accused, if he comes to know that information
14 within 30 days, from giving it away and endangering the security of that
15 witness if he -- unlike if he got it earlier than 30 days early?
16 MR. WHITING: Your Honour, I think that what's at issue here is
17 that there has to be a balancing between the interests of the Defence and
18 the interests of the accused to have the information that is required in
19 order to fairly defend their case and the reality that the accused is an
20 accused who -- where there is a prima facie -- there is an indictment,
21 there is a prima facie case of -- that the -- that supports that
22 indictment, and while the accused may be bound, as a technical matter by
23 the Rules of non-disclosure, it does not change the fact that the accused
24 is an accused under indictment.
25 And the -- I'm grateful that Your Honour has raised the example of
1 the 30-day non-disclosure because that is exactly the -- that is exactly
2 the sort of proof of this point. The reason that we are permitted to --
3 and we have been permitted by this Trial Chamber and by other Trial
4 Chambers to delay disclosure of witness identity in certain sensitive
5 cases until 30 days before that witness testifies is precisely because
6 there is a risk, a risk that we have to demonstrate, that we have a burden
7 to show and we have been able to show, that if it's disclosed earlier to
8 the Defence, then the witness's security may be jeopardised. That has
9 been our proof.
10 JUDGE MOLOTO: My question is simple, Mr. Whiting: What
11 guarantees the security 30 days later?
12 MR. WHITING: Your Honour, there is no guarantee. But when it's
13 30 days before --
14 JUDGE MOLOTO: Is it worth the paper it's written on?
15 MR. WHITING: Well, Your Honour, if the name is out there for a
16 year, as opposed to 30 days beforehand, I think that one can say that
17 there is a greater danger if it's out there for a year. There is more
18 opportunity for tampering and for witness -- and violating the witness's
19 security. And 30 days beforehand, that is the point where the interests
20 of the accused lies so that we have got to turn it over. The balancing
21 tips the other way and we -- we cannot obviously keep it from the accused
22 forever and so the balancing is struck at 30 days between those two
23 interests. So I disagree with Your Honour that such measures are not
24 worth the paper they are written on. They are not perfect. They are not
25 guarantees but they are the best we can do and they show precisely the
1 point I'm trying to make, which is the interests in these two different
2 directions is not the same, and the Defence simply cannot get up and say,
3 well, they with held information, therefore we can with hold information.
4 That's not good enough. They have got to say why it is that there is a
5 need to withhold this particular information from the Prosecution. And if
6 the reason is well, the Prosecution is going to go tamper with our
7 witnesses, I'd like to hear the basis for that.
8 JUDGE MOLOTO: Mr. Milovancevic [Microphone not activated]
9 MR. MILOVANCEVIC: [Interpretation] Your Honour, two issues, very
10 briefly. I share the opinion of Her Honour Nosworthy that access to the
11 other party's witnesses at the moment when the statement was taken is
12 against the Rules. Well, the Rules do not expressly prohibit that. It
13 may be presumed that it could be allowed. But whoever leads a witness,
14 they have the right for examination-in-chief. Then the other party may
15 cross-examine. Then re-examination in joinder, then rebuttal, so Rules
16 have to be construed within a certain logical system connected and to
17 determine what a certain Rule means. By applying Rules we also interpret
18 them, Your Honour. My opinion is if the OTP has reached a certain witness
19 and reported that witness as theirs, I may work with that witness only
20 during cross. Otherwise, the Rules would be breached. That's one point.
21 The other point concerning disclosure of particulars to the other
22 side. One of our witnesses, I cannot remember the code, he was a
23 protected witness, that witness, at the moment when he was announced as a
24 witness and immediately before coming to witness, experienced such nasty
25 things in Banja Luka that police had to check their address, et cetera.
1 He was a protected witness. Another witness who testified after that one
2 experienced approaches from the OTP, and when Mr. Whiting, I accept when
3 he says that it is a normal situation when the OTP does not have
4 information about that person being our witness. That's one thing. But
5 if they already know that somebody is our witness, then they are breaching
6 the rules of common decency and I believe that the Rules force them to
7 stand back and wait for their opportunity during the cross-examination,
8 and this is how I see the matter.
9 The question raised by the OTP when it comes to disclosure, we, as
10 the Defence team, are in possession of a piece of information that we
11 received from the accused, that Defence witnesses, when coming back home,
12 were experiencing very bad, nasty things. They were mistreated, harassed,
13 arrested. We are talking about small countries. Everybody knows
14 everybody and people are afraid of such consequences. I want to say that
15 the Defence team, by approaching the Chamber to obtain safe conduct wishes
16 to create the conditions for witnesses to approach this Chamber and
18 JUDGE MOLOTO: Mr. Milovancevic, let's not repeat ourselves, but
19 let me just raise this issue again with you because you have repeated it.
20 It is not good enough to tell us about the unfortunate experiences of some
21 other witness that has testified or that was called by the Defence at some
22 stage and use that as a reason for not disclosing the particulars of this
23 one. That is why you got -- when you apply for protective measures or
24 safe conduct you've got it tell us what is it in respect of this specific
25 witness that makes you not disclose or that makes you want protective
1 measures or that makes you want safe conduct.
2 And if you are saying that your witnesses are being harassed, that
3 may very well be so or that may not necessarily be so, but what are the
4 facts in relation to this specific -- each case must be treated on its
5 merits. That's the rule. Each case must be treated on its merits. Now,
6 the thing is you haven't told us - perhaps you did now by today's filing
7 but I haven't read that filing yet because I've been busy talking with
8 you - you haven't told us what is it with respect to this specific witness
9 that makes you want to file ex parte. I can't remember the other thing
10 that -- well, on the question of the Prosecution having to respect your
11 witnesses once they know, I share your view. Mr. Whiting doesn't share
12 the view, but nonetheless, he has said if he does know he will make sure
13 that he respects that. So there is no need for us to go back to that one.
14 And I'm not sure by saying this specific witness had been approached by
15 the Prosecution, and if he hasn't been approached by the Prosecution, what
16 are the specific and peculiar circumstances of this witness that make it
17 appropriate for you to seek an ex parte filing?
18 MR. MILOVANCEVIC: [Interpretation] Your Honour, for this concrete
19 witness, we submitted to the Chamber and the OTP reasons why we sought
20 safe conduct. The only remark of the OTP was that we did not disclose the
21 address and telephone number, and since they broached this subject
22 yesterday, we wrote today this filing responding and provided reasons why
23 we did so. This is the only issue broached by the OTP. Everything else
24 falls outside of the boundaries of what you just said. It covers a much
25 wider area.
1 Your Honour, if by your leave, I propose the following. The
2 Chamber can always rule on this subsequently after the break or maybe
3 tomorrow. Since the -- this witness has some other engagements in his
4 schedule, he's supposed to be travelling back home tomorrow, and he should
5 still be cross-examined, maybe we should be seized of this matter before
6 the next witness comes to testify.
7 JUDGE MOLOTO: Very well, then, that sounds like a very helpful
8 suggestion. We have spent a lot of time discussing this point and we are
9 not getting to any resolution.
10 I think we will deal with it by way of a written decision. Does
11 that bring us to the end of the housekeeping matters?
12 MR. WHITING: It does, Your Honour, thank you. And I apologise
13 for taking so much time. I actually had not expected it would take so
14 much time.
15 JUDGE MOLOTO: Thank you very much. I hadn't either. Shall we
16 call the witness, please?
17 MR. MILOVANCEVIC: [Interpretation] Your Honour, may I approach the
18 accused for a moment for some consultations?
19 [Defence counsel and Accused confer]
20 MR. MILOVANCEVIC: [Interpretation] Your Honour, Mr. Martic drew my
21 attention to his outrage by the statement of the OTP that we on our side
22 do not have a war criminal sitting here. We have to presume innocence and
23 everybody is guilty until a final verdict is taken. I would like to ask
24 from the Bench, or the Chamber, to remind the OTP to respect the dignity
25 of the accused in this courtroom. Providing arguments on legal issues and
1 points of law cannot be based on the besmirching of the accused's
3 MR. WHITING: Your Honour, it's at page 13, line 18, and it says,
4 accused war criminal. We do not have an accused war criminal sitting on
5 this side.
6 JUDGE HOEPFEL: Mr. Whiting, I think this language is a little
7 imprecise, isn't it, from a logical point of view. Friction with the
8 presumption of innocence is contained in such a language and I was also
9 feeling uncomfortable with that I must confess.
10 MR. WHITING: Your Honour, perhaps it was a bad choice of language
11 but I, with respect, think it was absolutely clear. I've been a
12 Prosecutor for 15 years. I know -- I'm very familiar with the presumption
13 of innocence. I respect it and I'm certainly respecting it here in this
14 courtroom today and I know that Mr. Martic is not convicted. He's an
15 accused. And I've always referred to him as an accused and nothing more.
16 And I apologise if my language was not more clear in that respect but I
17 really think it was clear.
18 JUDGE MOLOTO: Okay.
19 [The witness entered court]
20 JUDGE HOEPFEL: That's often the case with misunderstandings,
21 isn't it, that oneself thinks the language is not clear and one learns
22 it's not clear or has not been clear. Therefore, your offer for an
23 apology is very valuable I would think.
24 JUDGE MOLOTO: Let me just say that I'm trying to find it on the
25 transcript but I'm not finding it, but I do clearly remember Mr. Whiting
1 using words to the effect that we are -- we know that Mr. Martic has not
2 been convicted but there is a prima facie case that has -- which is the
3 basis of the indictment that is before court. But having said that,
4 having --
5 JUDGE HOEPFEL: This is then that --
6 JUDGE MOLOTO: Can I finish?
7 JUDGE HOEPFEL: Yes, of course.
8 JUDGE MOLOTO: Having said that, particularly for people who speak
9 different languages, I do think, Mr. Whiting, it may be a little
10 unfortunate to use accused war criminal. It's something to say a person
11 accused of war crimes, you know. The word "criminal", even though
12 preceded by accused, may be interpreted by speakers of other languages to
13 mean something different from what I think you wanted to mean. And I can
14 hear what you say, but simply because we come from diverse cultures and
15 diverse language backgrounds, I think it would be helpful if we use
16 language that is absolutely clear, that we are sitting here with somebody
17 who is accused of war crimes and therefore, A, B, C, D.
18 MR. WHITING: I take Your Honour's point and Judge Hoepfel's point
19 very clearly and I just hope it's clear from the language that I used in
20 various things I said that I did not intend anything more than to say that
21 Mr. Martic is accused and nothing more.
22 JUDGE MOLOTO: That's why I referred to your referring to prima
23 facie case.
24 MR. WHITING: Thank you, Your Honour.
25 JUDGE MOLOTO: Having said that, I just want to say to Mr. Martic,
1 on behalf of the Chamber, we just want to apologise to you for any
2 unfortunate meaning that may have been conveyed to you by the statement.
3 I hope you have heard Mr. Whiting's explanation. He never intended to
4 suggest that you're a criminal. He just suggested that you happen to be
5 accused of the crimes. Okay? And we appreciate you raising the point
6 with the Chamber if you feel uncomfortable about it. Thank you very much.
7 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.
8 JUDGE MOLOTO: I guess Mr. Black is supposed to be -- [Microphone
9 not activated] it's your turn now.
10 MR. BLACK: That's correct, Your Honour.
11 JUDGE MOLOTO: Before it is your turn, can I just make my turn?
12 Good afternoon, sir, I will not call you by name but I still do
13 recognise you and recognise your name and when I say "witness", I don't
14 mean disrespect. Just to remind you once again that you are still bound
15 by the declaration you made at the beginning of your testimony to tell the
16 truth, the whole truth and nothing else but the truth. Thank you.
17 WITNESS: WITNESS MM-117 [Resumed]
18 [Witness answered through interpreter]
19 JUDGE MOLOTO: The witness is yours, Mr. Black.
20 MR. BLACK: Thank you, Your Honour.
21 Cross-examination by Mr. Black: [Continued]
22 Q. Sir, hello. Good afternoon. I know you have plans and we are
23 going to try to get you out of here so you can catch your flight tomorrow.
24 So I am going to try to cover a lot of ground quickly. If you can help me
25 out by focusing on my questions, please.
1 The first issue -- and I believe we are in open session and we can
2 remain in open session, yes. You testified a little bit about the
3 structure of the RSK police and in particular, on Friday, at transcript
4 page 65, you said that the special purpose units of the RSK police ceased
5 to exist as of 29 November 1992. Do you remember telling the Trial
6 Chamber about that?
7 A. Yes. We were referring to the special police units.
8 Q. But that wasn't true, was it, because the special police units
9 continued to exist in 1993, didn't they?
10 A. No, not in that form. So no.
11 Q. Well, maybe in another form but essentially with the same name.
12 In 1993 there were still special purpose police units, correct?
13 A. No, there were not. The special police units from 1992 until the
14 date which you said existed in the form of a temporary formation, the
15 basic function of which was to guard the border line which is within the
16 ambit of the Ministry of the Interior and after that, no such units under
17 that designation existed but there were smaller units within each SUP
18 which were named special units. Their task being predominantly to
19 intervene where there was a need or there was a fear that there might be
20 the application of force or to counter infiltrated terrorist groups. So
21 these were the units that existed at that time. They were quite different
22 from the previous ones and they were very small in strength, the number of
24 Q. Well, let me be very specific about what I'm suggesting, and this
25 is a reference to Exhibit 730 which I don't think it's necessary to pull
1 up, but, sir, in 1993, the RSK police had essentially two departments, the
2 regular police which consisted of approximately 7.000 men was supposed to
3 deal with maintaining law and order and other traditional police business.
4 The other department, to use that word, was the special purpose police
5 which was intended to consist of about 16.000 men and their job was to
6 police the RSK borders and to protect the population from terrorist
7 attacks, correct?
8 A. No. I think that you changed the year. I'm not aware of that.
9 But certainly not. Definitely not. Perhaps you can assist me by telling
10 me who was in charge of those units, the name or surname of a commander or
11 something like that.
12 Q. According to Milan Martic in December of 1992, he was in charge of
13 overall internal affairs and the department of special purpose police, I
14 believe, was commanded over by a General Novakovic. Does that help
15 refresh your recollection of this structure?
16 A. I believe that you are wrong again. In 1992, the commander of the
17 special police units was Mr. Djukic, and in 1992, on the 19th of November,
18 those units were disbanded and the army of the Republic of Serbian Krajina
19 was established at the helm of which was General Mile Novakovic.
20 Q. And so if Milan Martic said in December of 1992 that the structure
21 would continue to be as I have stated it, then he was either wrong or not
22 stating it accurately?
23 A. I don't know what Mr. Martic stated. I know that you were wrong
24 when you said what you said to me.
25 Q. Okay. Well let's move on to another issue. I think we are clear
1 on your position there. Members of the special purpose police for the
2 most part were not professional policemen, right? They didn't have police
3 education prior to joining the RSK police.
4 A. The majority, most probably the majority, did not have that. I
5 cannot say with precision but in view of the duties they had to perform in
6 agreement with the civilian police, a certain number of people needed to
7 be recruited. So they were not qualified as classical policemen but they
8 did not police the standard rule and law and order but policed the border
9 line. Let me remind you that in 1991, the president of Croatia, Mr.
10 Mesic, distributed 54.000 badges of police members.
11 Q. Sorry, I think you answered the question. I don't want to get us
12 off on to another topic. In fact, the special purpose police were more of
13 a military formation than a police formation, right? And this follows a
14 little bit from what you said about their activities and they didn't do
15 traditional police activities.
16 A. Yes. They did not do traditional police activities, but performed
17 duties within their legal powers.
18 Q. And their duties are more accurately characterised as military
19 than police, right? They carried long weapons and they knew very little
20 about traditional police work; isn't that right?
21 A. In many countries, the police guards the border, and ipso facto
22 has that form of activity to perform as well. In view of the fact that
23 there were war operations going on, what you have said is also quite
25 Q. Okay. Well, not asking you about many countries. I'm not asking
1 you about normal, but is it correct what I have said, that they were
2 essentially military rather than police, that they carried long weapons,
3 that they didn't do traditional police work? Is that correct? Not is it
5 A. Mr. Prosecutor, I can only repeat what I've already said, they
6 were police forces doing police work. If you believe that in your view
7 that was more of military work, that means that you are changing actually
8 the legal regulations prevalent in the area of the RSK.
9 Q. Well, sir, no, let me interrupt.
10 A. Although I do agree, from that particular aspect, that they could
11 be seen as doing more of that kind of work but that was in keeping with
12 the legal prescriptions and practice.
13 Q. Okay. Well, I'm not really focused right now on this question
14 about the legal prescriptions and practices, but so do I understand you
15 correctly that you agree that they could be seen as doing more military
16 work than police work? Are we in agreement on that?
17 A. Well, I could say they discharged police work which involved more
18 military competences than is the case with the traditional police.
19 Q. Sir, isn't it a fact that the United Nations at least considered
20 the special purpose police units to be paramilitary units? That's the way
21 the United Nations saw them.
22 A. I'm not aware of that position. I know that the civilian police,
23 the UNPROFOR organs of the police, cooperated with those units in the
25 Q. In fact, the United Nations considered the very existence of the
1 special purpose police to be a violation of the Vance Plan, correct?
2 A. No. I'm not aware of that.
3 Q. Are you aware that according to the UN, the special purpose police
4 engaged in ethnic cleansing?
5 A. No. This is the first time I hear of it.
6 Q. You suggested on Friday, and I think this was at transcript page
7 67 of that day, that the RSK created the SVK because in its view the
8 United Nations had failed to prevent violations of the Vance Plan by
9 Croatia. That was -- that's your point of view, right?
10 A. Yes.
11 Q. But do you know that the point of view of the United Nations was
12 that the existence of these special purpose police violated the
13 demilitarisation provisions of the Vance Plan? That was the way the
14 United Nations saw it, correct?
15 A. No. I'm quite sure that you're wrong there. Let me remind you
16 I'm quite sure that you know that, that the special police units were
17 formed by the socialist Federal Republic of Yugoslavia which was a
18 signatory of the Vance Plan and a guarantor for its implementation. The
19 Republic of the Serbian Krajina was not a signatory of the plan. On the
20 basis of the agreement concluded for the forces of the Yugoslav People's
21 Army to withdraw from the area, the Socialist Federal Republic of
22 Yugoslavia wanted to solve that question in a territory which was still
23 under its competence and that is why these special police forces were
25 Q. Well, in fact, you say that they were established by the SFRY but
1 the special purpose units in 1992 were really just a continuation of the
2 special purpose units that existed in 1991, and in fact the structure
3 continued into 1993, isn't that right?
4 A. They had no connection whatsoever. The first units were the other
5 ones. This was a completely new structure arising from the Vance Plan,
6 and based on the decision, I believe, I cannot be sure, of which body but
7 it was a body definitely of the SFRY.
8 Q. Do you dispute that the people who joined the special purpose
9 units in 1991 continued to serve in those special purpose units in 1992
10 and 1993? Do you deny that?
11 A. I do not understand your question. I'm not clear on whether it
12 was prohibited for individuals to go to one or another unit. I don't
13 understand the question. There were some members who joined some of those
14 units and then others joined other units but I don't know that. If I have
15 managed to answer your question, I'm not sure.
16 Q. I'm not sure that you have. My point is that there was continuity
17 between the special purpose units in 1991 and in 1992 and into 1993 and
18 one of the aspects of that continuity is that people who joined in 1991
19 would stay in those special purpose units all the way into 1993; isn't
20 that right?
21 A. Mr. Prosecutor, I've said clearly that there was no continuity and
22 anyone who consults the legal regulations, the norms and the dates of
23 establishment will ascertain that. I don't know how these 1993 units can
24 have any connection with the previous ones. This was a completely new
25 structure. There is no connection whatsoever between the two kinds of
1 units at all.
2 JUDGE MOLOTO: Can I just get clarity? Notwithstanding the change
3 in the regulations and in the law, is it not so that the people who
4 composed the special purpose units in 1991 continued to be in the special
5 purpose unit in 1992 and 1993? In other words, as I understand the
6 question from the Prosecutor, is -- there was a change in name and a
7 change in the regulations, but on the ground there was no change. What do
8 you say to that?
9 THE WITNESS: [Interpretation] Your Honours, I'm quite sure that
10 this is not so. If we proceed from just one state of facts, which is that
11 the special purpose units numbered 16.000 people, as the Prosecutor said,
12 I don't know what that number was, and I don't know what their strength
13 had been before that. They certainly had not existed in that strength and
14 in that form. They were certainly under -- probably under 1.000 people
15 strong and therefore, there is no connection between the two units. Now,
16 whether someone from the previous units joined the other units, I have no
17 idea. And if they did, it is a much smaller number than the units, the
18 previous units had.
19 JUDGE MOLOTO: Which time period are you saying they were 1.000
20 people strong?
21 THE WITNESS: [Interpretation] I said that I don't know their
22 number, but I don't believe that before 1992 there had been a thousand of
23 them. I cannot say with certainty. But I do know that this number
24 referred to as their number from 1992 is something which cannot be so. As
25 far as I remember, on Friday, I said, not all the units had been formed,
1 eight brigades were supposed to be formed and I believe only four were
2 established and the other ones were actually disbanded, were not
3 established but that was not part of my job so I cannot talk about these
4 matters in detail.
5 JUDGE MOLOTO: Thank you, Mr. Black. I'm sorry I disturbed you.
6 MR. BLACK: No problem. I have just have a couple more questions
7 I'd like to do before the break. They are very short, I hope. And these
8 again come from Exhibit 75 essentially. I don't know if I mentioned that
9 for the use of the Defence and the Trial Chamber.
10 Q. Sir, Milan Martic told UNPROFOR in 1992 that the Vance Plan was
11 not acceptable in its present form and it needed to be amended. Is that
12 correct? Do you know anything about that?
13 A. I wouldn't know concretely about these details.
14 Q. Okay. My last question just before the break is: In part on the
15 questions, the things that we have been talking about for the last 10 or
16 15 minutes, contrary to what you said on Friday and I believe again
17 yesterday, the United Nations was hardly satisfied with the work of the
18 RSK police, was it? In fact, they made constant complaints to the RSK
19 police about specific incidents and about more work that needed to be
20 done, isn't that the case?
21 A. Mr. Prosecutor, two facedness was their constant and it's possible
22 certain representatives of UNPROFOR who contacted us may have been
23 two-faced as well. They may have told us one thing and written in their
24 reports something else. Yesterday, you gave us a document where Mr.
25 Thornberry discusses the quality of the cooperation between UNCIVPOL and
1 our police, and he stated it was good and I wouldn't dare to negated what
2 he said.
3 Q. Well, just so that's clear, that wasn't a document that I showed
4 to you. That was a document that Defence counsel showed to you. And
5 while you mention it, you weren't present at the meeting that was referred
6 to in those minutes, were you? And consequently, you can't state one way
7 or another about whether those minutes are accurate, can you?
8 A. I did not attend that meeting, but I wasn't there when UNPROFOR
9 drafted their reports, but what I can say is drawn from my own experience.
10 Q. You weren't at the meeting, consequently, you can't say yes or no
11 if the minutes are accurate to that meeting, can you?
12 A. I can only say that it was correct from the point of view of the
13 person who kept those minutes, knowing his character.
14 Q. Right. But you weren't there and so you can't really say. That
15 doesn't seem to be a controversial point. Do you agree with me that you
16 weren't there and consequently you can't really say whether or not the
17 minutes are accurate?
18 A. To the extent that you agree that I cannot accept the minutes
19 taken by UNPROFOR, then I would not accept the minutes taken -- you
20 wouldn't accept minutes taken by our side but that -- this would lead us
21 no where.
22 Q. Sir, answer the question. Don't go to another question or give
23 speeches about UNPROFOR. It's not a difficult question and I think you
24 need to answer it so that we can take our break. You cannot vouch for the
25 accuracy of those minutes, can you?
1 A. I cannot guarantee or say that this -- these minutes are not
3 Q. Can you -- and you can't say that they are correct, can you? It's
4 not a difficult question, sir. Answer the question, please.
5 A. Your Honours, I would like to ask my answer to be accepted. I
6 stated three times clearly what I hold to be true about these minutes but
7 the OTP cannot accept that this is an insinuation. I can vouch that it is
8 correct to the same extent that I can say it is incorrect.
9 JUDGE MOLOTO: Unfortunately, you don't choose the questions that
10 you have to answer. The questions are chosen either by the Defence or by
11 the person who asks the questions. I'm going to ask that we take a break
12 and we can carry on with that question when we come back.
13 Court adjourned and come back at 4.00.
14 --- Recess taken at 3.35 p.m.
15 --- On resuming at 4.05 p.m.
16 JUDGE MOLOTO: Mr. Black, you had a question.
17 MR. BLACK: Thank you, Your Honour.
18 Q. Witness, I'm really doing my best to get through there material
19 quickly because we understand that you have other business to attend to
20 and we also have a trial to get on with, but if you refuse to answer
21 simple questions that slows everything down. So I'm going to ask you
22 hopefully just one more time.
23 You've said you weren't present at the meeting with regard to the
24 minutes that we saw yesterday. And because you weren't there, you can't
25 say that those minutes are accurate, nor can you say they were inaccurate.
1 You just can't personally confirm or deny the accuracy of those minutes;
2 isn't that correct?
3 A. I confirm the morality and the righteousness of the person who
4 drew these minutes and to that extent, I hold these minutes to be
6 Q. But you can't personally confirm or deny their accuracy, right? I
7 didn't ask you about the morality of the person who took them. It's a
8 simple thing. You weren't there and you can't personally say whether they
9 are accurate or not, can you? I'm going to keep asking you this question
10 until you answer it.
11 A. Your Honours, I apologise. This sentence of the Prosecutor is
12 connected to the previous ones, in terms if you do not answer in the
13 manner that I want you to, then I'll keep badgering at you until you miss
14 your plane tomorrow. Why should I trust this document and distrust
15 another document? This is the matter at hand.
16 JUDGE MOLOTO: I'm sorry. You addressed yourself to Your Honours.
17 Now I said to you before we went on the break that you don't chose the
18 questions that you get asked. You've been asked a question and it's not a
19 very difficult question. You can answer whether you can confirm that the
20 minutes were accurate or you can't vouch for the accuracy. It's as simple
21 as all that. And if you say that you have been badgered by the
22 Prosecutor, then you are the author of that badgering.
23 THE WITNESS: [Interpretation] Your Honours, I said --
24 JUDGE MOLOTO: I don't intend going into an argument with you.
25 Just answer the question put to you. Can you confirm the accuracy of the
1 minutes or can't you? I don't think there is anything difficult or tricky
2 about that. If you are not asked about other minutes, that is so, but
3 you're being asked about these minutes.
4 THE WITNESS: [Interpretation] Well, I confirm the accuracy of
5 these minutes.
6 MR. BLACK:
7 Q. On what basis can you confirm the accuracy of the minutes that we
8 are talking about now, if you weren't there?
9 A. On the basis -- on the same principle that I can confirm the
10 accuracy of other meetings -- of minutes of the meetings that I did not
11 attend and accuracy of documents that I had nothing to do with.
12 Q. So I guess you're saying that as you testify here, you're more
13 than happy to talk about things that you don't even personally know about
14 but you're willing to confirm or deny things based on suppositions or
15 speculation. Is that the way I should understand your answer?
16 A. Quite the contrary. I believe that you are speculating and I am
17 telling things as they are.
18 Q. I guess I'll move on. I think I've beaten that horse as much as I
19 can, Your Honours.
20 Witness, yesterday we talked a little bit, and perhaps too
21 abstractly about the issue of how many Serbs were victims of crime as
22 opposed to Croats and things like that. So I want to put it in extremely
23 concrete terms for you now. And to do that could we please see on the
24 ELMO Exhibit 909. I apologise, on the e-court, talking in the old lingo.
25 On the e-court, not on the ELMO.
1 Sir, what you see before you is a report from the Knin SUP, in
2 fact, dated 16th of August 1994. Do you see that?
3 A. Yes.
4 Q. And if we -- I think scroll down just a little bit on that first
5 page, you'll see that it says there that 16 -- perfect -- 16 people were
6 murdered in 1992, I take this to mean in the area under the jurisdiction
7 of the Knin SUP, of whom five were Serbs and 11 were Croats. Is that what
8 it says?
9 A. I can't read whether it's 11 or 16. I cannot see the figure.
10 It's supposed to be 11 because 16 persons were killed, five Serbs and then
11 it makes it a 11 when it comes to Croats.
12 Q. Thank you. I see there on the original why it's difficult to read
13 but I appreciate your answer.
14 If you look at the list, and we will start with that third name
15 there, Mate Slavic, it says that's a Croat and the perpetrator of that
16 murder is unknown. Is that what it says there?
17 A. Could you please scroll up to see the heading? Thank you. We can
18 scroll back down to the text. Could you repeat your question, please?
19 Q. Of course. That third name there, Mate Slavic, it says was a
20 Croat and the perpetrator is not known, correct?
21 A. Yes, yes.
22 Q. If we could turn to the next page in both the B/C/S and the
23 English, you see -- so if we could look at the top half of that document,
24 you see a name there, Marko Agic. Again a Croat, and according to this he
25 was killed by a Croat. Then the next entry refers to three people with
1 the surname of Bura who were Croats. The perpetrator of that crime is
2 unknown according to this document. The next name, Vuza Slavic, another
3 Croat, also unknown. Then the next one down, two Croats with the surname,
4 Edsigovac, again the perpetrators are unknown.
5 Sir, my question is that in 1992, according to this document, of
6 all the 11 Croats who were murdered in this area, all of those crimes
7 remained unsolved except for one where the perpetrator was a Croat,
9 A. I don't know whether it was so. It is written so but I believe it
10 wasn't so.
11 JUDGE MOLOTO: Do you believe in the morality of the person who
12 wrote this report?
13 THE WITNESS: [Interpretation] I do believe, but I do not
14 believe -- well, this document should contain some other things. This
15 document was drafted in 1994. Am I right? And I --
16 JUDGE MOLOTO: If you do believe the morality of the person who
17 wrote it, why don't you believe the truthfulness of the document? That's
18 the argument you used a little earlier about the letter -- about the
20 THE WITNESS: [Interpretation] I said I believed in the morality
21 but I believe it was not complete in certain things. I wanted to finish
22 my sentence. As far as I can see the date here, the date of the murder of
23 these -- in the case of Bura is 7th of July 1992, and I don't know what
24 happened previously. Maybe I'm wrong, but I'm being led to believe --
25 well, it is important where people were killed, whether in the villages
1 that the demarcation line or line of separation went through because after
2 the attacks of Croats on the Miljevac plateau --
3 JUDGE MOLOTO: You're not answering my question. Just forget it.
4 You may continue, Mr. Black.
5 JUDGE NOSWORTHY: Could I just ask a question before you
6 continue. Beside Marko Agic, I don't know if that's the right
7 pronunciation, in the fourth line, is it under offence where it says bad
8 blood? What exactly does that mean?
9 THE WITNESS: [Interpretation] Presumably, it refers to a personal
10 conflict between the two persons, but I cannot really tell you what
11 actually transpired.
12 JUDGE NOSWORTHY: Is that an offence?
13 THE WITNESS: [Interpretation] Yes, yes.
14 JUDGE NOSWORTHY: Thank you.
15 MR. BLACK:
16 Q. If we look down now just a little bit on the page, in B/C/S and in
17 English, we get to the year of 1993. There it says that 13 people were
18 murdered. And again I take this to refer to the jurisdiction of the Knin
19 SUP because that's who drafted this document. Of those 12 murders --
20 there were 12 murders, 13 people murdered, one Slovene, three Croats and
21 nine Serbs. That's what it says, correct?
22 A. It is written here, yes.
23 Q. If we scroll down just so we can see the rest of the page there.
24 Actually, as it's being scrolled down, I can already point your
25 attention. There were two Croats with the surname Palinic, perpetrator
1 unknown, Josip Zelic, a Croat, in that case actually there are two
2 perpetrators identified. Based on those names, I don't know if you're
3 able to tell us, sir, whether the perpetrators were Serb or Croat.
4 Perhaps you just don't know. Do you have any comment on those two names?
5 A. Which names did you mention? I was looking at somewhere else. I
6 was reading the text, three Croats, nine Serbs, and in the four cases, the
7 perpetrator remained unknown. Which names did you refer to?
8 Q. First, I just briefly referred you to the two Croats with the
9 surname of Palinic where the perpetrator is unknown, and then further
10 down, near the bottom of the page in B/C/S, you see the name Josip Zelic,
11 another Croat, and there are two perpetrators named there and I don't -- I
12 simply don't know if it's possible for you looking at those names to know
13 whether those were Croat or Serb perpetrators.
14 A. It is difficult to tell whether they are Serbs or Croats. I
15 presume that they may be Serbs judging by their first and family names but
16 I would like to supplement what you said for the previous year 1992. This
17 is why I thought about these data. At 1992, there was the murder of the
18 Cengic family and I cannot find these names here. The perpetrators were
19 Croats. They were apprehended and prosecuted. So I'm not clear as to who
20 wrote -- drafted this document because, as I said, there were other things
21 going on.
22 Q. Okay. Well thanks for that clarification and we will talk about
23 the Cengic incident after we are done with this document maybe. And I
24 understand your explanation that it's just -- it's not possible to say
25 with certainty the ethnicity of those two people mentioned, although based
1 on the names, you could guess they were Serb, but that's not definitive.
2 So thank you for that.
3 If we go to the next page in B/C/S -- thank you. There near the
4 top, the third name is that of Luka Skoric, another Croat, and again the
5 perpetrator isn't identified. Sir, my question is just that you've
6 expressed that you think there may be information that's not included
7 here, but based on this document, it would suggest that murders of Croats
8 were solved by the police in Knin much less frequently than murders of
9 Serbs. Isn't that right? In 1992 and 1993.
10 A. It only appears to be so but that is not the fact because not all
11 the data has been actually given, and I think -- I cannot remember their
12 names of course. I believe that most of these murders took place in
13 villages along the demarcation line where other forces had jurisdiction,
14 not the civil police. The inspector of the police could only subsequently
15 come to inspect the scene. This is of course not meant to justify any
16 crimes but this was certainly the period after the Miljevacki plateau
17 where several tens of Serbs were killed in atrocious ways and perhaps this
18 was a case of revanchism, of retaliation, but only in that area. Of
19 course, I'm not saying this in terms of any justification of any crimes.
20 I just wanted to stress that the jurisdiction of the organs of the
21 Interior in these border areas, because this was a special area under
22 special control was only once an incident happened to have the organs come
23 to the scene and inspect the scene, and therefore, perhaps they were that
24 inefficient. There were no other reasons.
25 Q. Okay. We are done with that document for the time being at least.
1 I'll ask you just about a couple of other specific incidents or
2 time periods, I guess, not even necessarily particular incidents. For
3 example, you testified on Friday that in 1992, the Croatian population in
4 Benkovac was maltreated to some extent, is the way you put it, and that
5 some Croats were killed there in Benkovac in January and February of 1993.
6 Do you remember telling us about that topic?
7 A. Yes. I spoke about the instances of maltreatment and also that
8 there had been some murders.
9 Q. Thank you. In fact, in just one week, in February of 1993,
10 somewhere between 11 and 17 Croats were murdered and one woman was raped
11 in the Benkovac area. Isn't that correct?
12 A. I cannot confirm the accuracy of the figures but it is quite
13 certain that there were killings in that period, and we, as the organ of
14 the Interior, certainly undertook the necessary measures. That is also
16 JUDGE MOLOTO: Yes, Mr. Milovancevic?
17 MR. MILOVANCEVIC: [Interpretation] Your Honour, I waited for the
18 witness to respond to this question, and then I'm going to raise an
19 objection of general nature. Either 11 or 17 persons were killed. It was
20 either 12 or 13 or 14. If the Prosecutor presents to the witness as
21 authoritative information that it was either 13 or 14 or 17 people that
22 were killed, that lacks seriousness. And I'm pointing to this because we
23 dealt with this question previously with another protected witness who
24 actually pointed to that problem. So I should like to kindly ask my
25 learned colleague to tell the witness exactly whether it was 11 or 17
1 people that had been killed and then we will get the right answer. And
2 also, a woman was raped. If a woman was raped, what was her name? Let's
3 hear her name and let us hear the names of these 11 or 17 victims because
4 the Prosecutor is submitting very difficult facts to the witness which I'm
5 not going to comment on any further for the witness's sake.
6 JUDGE MOLOTO: I'm not quite sure what you want the Court to do if
7 you waited until the witness had answered because now the question has
8 been asked and answered. In any case, Mr. Black?
9 MR. BLACK: Your Honour, I'm almost at a loss. I don't see what's
10 inappropriate about me putting a range of figures. I don't know how many
11 people were killed in that particular time. I don't know this woman's
12 name but I can still put a question to the witness which he was easily
13 able to answer. And I would say that this comes straight from an exhibit
14 in evidence, 729, just putting our case to the witness. He didn't seem to
15 have any trouble with it and I also -- so I'm not sure what the basis for
16 the objection is but I see no basis for not being able to answer that kind
17 of question.
18 JUDGE MOLOTO: I don't know what ruling to give, Mr. Milovancevic,
19 because the question has been answered and indeed I don't understand the
20 basis for the objection myself. It's between 11 and 17.
21 MR. MILOVANCEVIC: [Interpretation] Your Honours, I want to say
22 that every and any victim is a terrible thing. If the colleague
23 Prosecutor wants to ask the -- this specific question of the witness, let
24 him ask him that very specifically, because we saw the names, the dates
25 given in this document and the possible outcome of the proceedings, and
1 whether there was the perpetrator had been detected or not. So I just
2 wanted to draw the attention of the Prosecutor with all due respect to the
3 fact that this -- raising this question in this way can hardly be relevant
4 and serious. We have heard a lot of things about UNPROFOR reports.
5 JUDGE MOLOTO: [Previous translation continues] ... Mr.
6 Milovancevic, now that you venture that as a basis --
7 MR. MILOVANCEVIC: [Interpretation] Because the Prosecutor doesn't
8 have the name of a single victim and doesn't know anything about it, and
9 he's actually just fishing and speculating.
10 JUDGE MOLOTO: But your witness has answered the question, Mr.
11 Milovancevic. I don't know what you want us to do. Are you still having
12 questions on this point, Mr. Black? Or are you going to the next
14 MR. BLACK: I'm going to move on to the next question.
15 JUDGE MOLOTO: I think move on to the next question because this
16 question has been asked and answered and Mr. Milovancevic didn't object
17 and I think, just for the record, the objection for that reason only is
19 MR. BLACK: Thank you, Your Honour.
20 Q. Witness, now we are going to talk about the Cengic matter which
21 you just mentioned a little bit ago and I think you said that it was
22 investigated and it was prosecuted and I'd -- in that connection, I'd like
23 to show you a document. It's ERN 03650314 to 0324. If we could see that
24 on the e-court, please.
25 This is a document, sir, as you can see from the Belgrade military
1 court. It's a response to a request for information by the Prosecution,
2 by this office, way back in January 2003. And if we could, I believe, go
3 to the next page in B/C/S, please and it's also the second page in English
4 and look for numbered paragraph 2. Actually it looks like we have to go
5 to the third page in B/C/S. I apologise. Yes, if we could focus in on
6 that --
7 JUDGE MOLOTO: What page in the English?
8 MR. BLACK: It starts actually at the bottom of page 2 in English
9 and continues on to the top of page 3, Your Honour. It's a paragraph that
10 begins with the name in bold "Slobodan Kovacevic".
11 Q. Witness, just take a moment and read through that paragraph, just
12 silently to yourself. You don't have to read it out loud, but if you just
13 go ahead and read through it.
14 A. I read it.
15 Q. Thank you. And that refers to the Cengic killings which you've
16 testified about, correct, and identifies the perpetrators as a Slobodan
17 Kovacevic and Damir Travica, correct?
18 A. Yes.
19 Q. And it appears from this document that the case was actually filed
20 in the military court in Banja Luka and then later it was transferred to
21 the county court in Knin because of a lack of competence or lack of
22 jurisdiction. That's what it says here, right?
23 A. Yes.
24 Q. In other words, it would seem from this document that this case
25 was initiated by the military, not by the police, certainly not by the RSK
1 police, right?
2 A. The RSK police was in charge of the inspection of the scene, the
3 investigation, and it detected the perpetrators. I find it slightly
4 illogical that it should have been referred to the military court in Banja
5 Luka. In my view, it should have been first submitted to the district
6 court in Knin, but we undertook the investigation when we detected the
8 Q. It says towards the end, I think, it's in fact the last sentence
9 of the paragraph, it says that the Belgrade authorities don't know how the
10 case was finalised, and I believe you hadn't actually mentioned that
11 specific part in your testimony on Friday. In fact, the murders of the
12 Cengic family were never put on trial in the RSK, were they? Their case
13 never came to trial?
14 A. I don't know that. What I know is that we undertook all the
15 investigative actions and that the law enforcement and Ministry of the
16 Interior did everything it should have done. And the rest is not within
17 our jurisdiction, but of course I would have liked to have seen the
18 perpetrators punished for what they did.
19 Q. Sorry, it's just my colleague pointed out -- so there is no
20 confusion, this is the incident of the four people killed that we talked
21 about or that you talked about with the Defence counsel on your direct
22 examination, the Cengic family, right? Just so that it's clear on the
24 A. Yes, that is I believe what we are talking about.
25 Q. Okay. Thank you for that.
1 JUDGE MOLOTO: I'm just trying to find clarity on what is meant
2 by, "And I want to add that this offence was qualified according to the CC
3 RSK because Croatian criminal law was not recognised at that time." Not
4 sure whether I know what the CC RSK is and I don't know what is meant
5 by "qualified."
6 MR. BLACK: Your Honour, I take that abbreviation to mean the
7 Criminal Code of the RSK, but that's a bit of a guess. Perhaps the
8 witness can help us out as to what that last sentence means when it says
9 the offence was qualified according to the CC RSK or -- I see it actually
10 has a different abbreviation there in B/C/S. Because Croatian criminal
11 law was not recognised at the time.
12 Q. Can you give an explanation for that, please, witness?
13 A. It says the Criminal Code of the Republic of the Serbian Krajina.
14 At that time, I believe the Criminal Code of the SFRY was still valid on
15 the territory of the Republic of the Serbian Krajina because separate laws
16 were passed of the Republic of Serbian Krajina only a bit later. What you
17 asked about refers to the Criminal Code.
18 JUDGE MOLOTO: But I don't think I agree with what you're saying.
19 Was qualified according to the Criminal Code - if I accept that CC is
20 Criminal Code - of the RSK so the laws of the RSK are in place at the
21 time. That's why it was qualified according to that criminal law of the
22 RSK, not of the SFRY. And why it is qualified according to that Criminal
23 Code of the RSK is because the Croatian criminal law was not recognised at
24 that time. So what was recognised was the RSK Criminal Code. But I don't
25 know what is meant by "qualified" and if you're able to -- if you are able
1 to cast a light on what is meant by "qualified" I would appreciate it
2 without necessarily referring to which law was being used to qualify
3 because we differ on that one.
4 THE WITNESS: [Interpretation] Your Honours, it was not tried
5 according to the Criminal Code of the RSK, but let me add that it is the
6 same law.
7 JUDGE MOLOTO: Same law as what? As which law?
8 THE WITNESS: [Interpretation] The same law which was in force in
9 the territory of Yugoslavia, but I'm quite sure it was also the same one
10 that was valid in the territory of Croatia.
11 JUDGE MOLOTO: Okay. Just to make sure I understand you, when
12 they say qualified, you say that means it was not tried. Is that what
13 you're saying?
14 THE WITNESS: [Interpretation] Your Honours, no.
15 JUDGE MOLOTO: You said it was not tried according to the Criminal
16 Code of the RSK but let me add that it is the same law. That's what
17 you've just told us.
18 THE WITNESS: [Interpretation] Your Honours, I didn't say it was
19 not tried. I said I didn't know whether there had been a trial but the
20 criminal complaint was filed on the basis of that Criminal Code.
21 JUDGE MOLOTO: Okay. Thank you very much. I guess you're not
22 able to tell us what qualified means in context.
23 MR. BLACK: I could venture a guess, Your Honour, but it would be
24 characterised. But that's just my point of view. The witness doesn't
25 seem to be able to give us more information. Could this document be
1 admitted into evidence, please.
2 JUDGE MOLOTO: The document is admitted into evidence. May it
3 please be given an exhibit number.
4 THE REGISTRAR: Your Honours, this becomes Exhibit number 972.
5 JUDGE MOLOTO: Thank you.
6 MR. BLACK: Thank you, Your Honour. Could we see another document
7 bearing ERN 02007205 up until 7212, if we could see that on the e-court,
9 Q. Take a moment, Witness, to have a look at this document. You'll
10 find that it is a statement by Slobodan Kovacevic who we just saw
11 identified as one of the perpetrators of this crime, and as you read down
12 the page I think you'll see it identifies him. It says that he was
13 serving in the Territorial Defence at the time of the statement which is
14 dated 13 February 1992. So if you could just look at that first half of
15 the page there and tell me whether or not that's accurate.
16 A. Yes.
17 Q. Thank you. If we could scroll down, then, to see the second half
18 of the page, the bottom half, and just again to yourself you don't have to
19 read it out loud, but go ahead and read through that first paragraph, the
20 one that starts, "I'm not sure of the date when I, together with Damir
21 Travica, and gives particulars. And Nebojsa Travica committed the murder
22 of Drago Cengic, Neveka Cengic and their two underage children." Just go
23 ahead and read that paragraph to yourself.
24 And when you're finished, just tell me if you can confirm that
25 this is in fact a statement referring to the murder of the Cengic family,
1 those four people which you discussed on Friday and which we've just also
2 been discussing in the last few minutes.
3 A. I cannot see the end of the document. What I can see, I don't see
4 why this signature is there. Does it mark the end of this document? It
5 is illogical. There is no logical connection between the first part and
6 the second part. It is unacceptable to me that this would be the end of
7 the document. It doesn't follow the logic.
8 Q. Sorry, your jumping to conclusions. It's a longer document. In
9 fact, we will can look at the last page right now, in fact. Can we look
10 at the last page in B/C/S so that the witness can see the signature. The
11 last page? We will come back to this just so you can see there there is a
12 whole statement in fact. It's got eight pages in B/C/S and you can see
13 where it's signed by Slobodan Kovacevic, correct?
14 A. Yes.
15 Q. And the question I just asked you before, this is a statement
16 about -- this is a statement about this very crime that we have been
17 discussing which you discussed on Friday, correct?
18 A. Yes.
19 Q. If we could go back I think it will be on the second page in
20 B/C/S. There is just one particular part I'd like us to look at.
21 JUDGE HOEPFEL: Just a question, Witness. Is this not familiar to
22 you, to see a transcript or a document where every page is signed, no
23 matter if it makes sense to read this page alone? Or is this new for you,
24 to see such a document?
25 THE WITNESS: [Interpretation] No, no, no. This is not something
1 new. I just believed that this was the end of the document.
2 JUDGE HOEPFEL: You may proceed, please.
3 MR. BLACK: Thank you, Your Honour.
4 Q. As soon as we have a second page up in B/C/S, and sir, you're
5 going to have to help me a little bit. I think that it's just trying to
6 make sure I can locate it, it's the first -- not the first paragraph you
7 see there, but the next one that starts -- down -- it says quite exactly
8 whether Damir and I agreed about how and in what manner we would expel the
9 remaining Croats from our village. Do you see that paragraph?
10 A. Yes, I can see.
11 JUDGE MOLOTO: What page is it in the English?
12 MR. BLACK: Thank you, Your Honour. It's at the top of page 3 in
13 English. I apologise.
14 JUDGE MOLOTO: Thank you.
15 MR. BLACK:
16 Q. And Witness, if you could take a second to read through that
17 paragraph if you need to, but you had testified on Friday that you thought
18 the Cengic family was killed because the perpetrators wanted to steal
19 their property and you talked about looting, but it's quite clear from
20 this statement of Slobodan Kovacevic that these people were killed in
21 order to cleanse this village of Croats, isn't it?
22 A. In accordance with this statement, this is so.
23 Q. Thank you. If we could turn to the last page again.
24 JUDGE NOSWORTHY: Just one moment, please.
25 MR. BLACK: Certainly, Your Honour.
1 JUDGE NOSWORTHY: Thank you very much.
2 MR. BLACK: Thank you, Your Honour. If we could now see the last
3 page in B/C/S and in English. Thank you. If we could -- yeah, that's
5 Q. Witness, it says here -- has the name and signature of Mr.
6 Slobodan Kovacevic who gave the statement, and it's clear here that this
7 statement was taken by military investigators, not police investigators,
9 A. It is clear that the military investigator took this statement.
10 What is not clear and what did happen is that the civilian police did
11 their bit and I know why this document is -- usual practice, when a
12 military person commits a crime, then military structures prosecute. What
13 is for certain and what I stand behind is that the organs of the Interior,
14 our inspectors, processed this case and then it was handed over to the
15 military organs, which is fully in compliance with law.
16 Q. Well, sir, I understand what you've just said and I would just put
17 to you our position that this case, as it was apparent, he was
18 investigated by the military and was actually initiated in the military
19 court. And the RSK police on the face of it don't appear to have anything
20 to do with this investigation. Do you have any response to that?
21 A. I already said that you are not right, absolutely 100 per cent you
22 are wrong.
23 Q. Okay. Sir, you're aware, aren't you, that this case was never
24 brought to trial in the RSK? Slobodan Kovacevic and Damir Travica never
25 went on trial for these crimes in the RSK, did they?
1 A. I know that they were handed over to the competent authorities,
2 whether they were tried, I don't know. I know that they are free. But I
3 don't know whether they were tried or not. That I cannot say.
4 Q. Okay. So when you had said earlier in your testimony, maybe it
5 was just a slip of the tongue, but when you say they were prosecuted, or
6 that they were processed by the Knin authorities, in fact, you say now
7 that you don't know whether they were ever brought to trial?
8 A. Mr. Prosecutor, I said about the organs of the Ministry of the
9 Interior which did their part of the job, just as you are doing your job.
10 When our organs finished their job by detecting the perpetrators and
11 preparing their reports, then other authorities take over and you must
12 agree with me on that.
13 Q. Okay. I can't find the reference before but if I'm correct,
14 before you had used the word they were prosecuted, you didn't mean that to
15 mean actually the case went to trial in the RSK. Am I clear on that?
16 A. No. I just said that they were taken to court. What happened at
17 court, I don't know.
18 Q. Well, what do you mean by they were taken to court if you don't
19 know there was a trial. Do you mean they had some kind of initial
20 appearance or was a court-led investigation? What is it you think you
21 remember about this?
22 A. I want to say that they were given over to the Court. A criminal
23 complaint, report, was given to the Court and that these people were
25 JUDGE HOEPFEL: Which court, please? What is the name of this
2 THE WITNESS: [Interpretation] Given that I remember now, after
3 seeing this document, since military police took over, because this was a
4 conscript, the perpetrator was handed over to the military court in Banja
5 Luka and after that, that case was reverted back to the district court at
6 Knin. What happened at the district court in Knin I cannot say. Criminal
7 complaint was filed, investigation had been done, what other steps were
8 taken, I really cannot say. However, what I do know, and what I've
9 reiterated, all perpetrators, particularly of such heinous crimes should
10 be held responsible. If there were any failings in this process, it is
11 unacceptable from the viewpoint of the overall system.
12 JUDGE HOEPFEL: This is really not the question I asked, but thank
13 you for the rest of your information. Please.
14 MR. BLACK: Thank you, Your Honour.
15 Q. Witness, you said a moment ago I know that they are free. And in
16 fact, it's true isn't it, that Damir Travica has been in the United
17 Kingdom until at least May of this year while Croatia seeks his
18 extradition to be tried for this crime. Slobodan Kovacevic is also --
19 well in his case, he's a free man somewhere in Serbia. That's all
20 correct, isn't it, or do you know anything about that?
21 A. I don't know anything about that.
22 Q. And both of these men were actually tried and convicted in
23 absentia in Croatia in 1993 but other than that proceeding, neither of
24 these two perpetrators, one confessed killer, neither of them have ever
25 been put on trial for this crime, have they?
1 MR. MILOVANCEVIC: [Interpretation] Objection, objection, Your
2 Honour. We've recently seen the document from the Belgrade military court
3 which states that the two individuals, Travica and Kovacevic, were charged
4 with murder, qualified or characterised by the penal code of the RSK. For
5 the OTP to discuss this issue, they must know the elementary things of the
6 criminal law in Yugoslavia. For somebody to be indicted, this means that
7 the police has made their inquiries, investigation, that they lodged a
8 criminal complaint to the Prosecution, Prosecution then initiated its
9 investigation, investigation was concluded and an indictment was issued.
10 Indictment in the Yugoslav penal system is the finale of the criminal
11 investigation. Once an indictment is issued, then during the trial stage,
12 evidence is examined. We've seen that this case was sent to the military
13 court of Banja Luka. It was reverted back to the district court of Knin.
14 And that case was at the district court of Knin where two individuals were
15 charged with the gravest of criminal offences and the OTP is not in
16 possession of data --
17 JUDGE MOLOTO: Mr. Milovancevic, you know, I've been trying to
18 wait for the basis of your objection. I'm not sure whether you're
19 objecting or you said your objection. I don't understand what you are
20 saying. Now you're saying -- you're telling us that it was referred to
21 the district court of Knin and that that case was at the district court of
22 Knin where the two individuals were charged. The witness has told us
23 that -- now you're testifying. The witness has told us that these people
24 were taken to the district court in Knin. He doesn't know what happened.
25 They went and appeared there. Where do you get it from that they were
1 charged? And what is the base -- what is the basis for your objection?
2 MR. MILOVANCEVIC: [Interpretation] Your Honour, Your Honour,
3 information originated from the exhibit led by the Defence -- by the
4 Prosecution. A report from the military court of Belgrade, 7 -- 972 which
5 says that they were indicted. You can indict or you can call somebody as
6 indicted only if an indictment had been issued. I can testify about these
7 things but I will not resort to -- so our investigator was investigating
8 this case of Travica, went to the UK.
9 But what I'm saying is something different. The Prosecution does
10 not have a single piece of information that they are confronting the
11 witness with. They are saying no court proceedings had been instigated.
12 How can they say that when we see from this document that an indictment
13 was issued before the competent court against these two. Criminal
14 procedure was initiated by issuing an indictment, and they have not been
15 sentenced or other things are speculations. This is the only answer that
16 is possible. What I'm saying is based on the system that I know from
17 within. The OTP does not know the system.
18 JUDGE MOLOTO: You are giving a lot of evidence here which you are
19 not entitled to do. I would like to ask you if you have an objection, you
20 must stand up and say, "I object because what is being asked is not
21 relevant. Or I object because what is being asked is give -- give another
22 ground of objection." Don't give us a long speech. You've said a lot of
23 things here which are inappropriate. Mr. Black do you have any response
24 to what Mr. Milovancevic is saying?
25 MR. BLACK: Yes, Your Honour. I don't want to repeat what you've
1 already said. He's testified -- he's testified inaccurately about what
2 the document actually says, and I object to the fact that three or four
3 times in the middle of my cross-examination, he stands up and gives a
4 speech with -- there is no real objection there and I just -- it's
5 disruptive, whether it's intended to be disruptive or not, I can't say,
6 but it is disruptive. I see no grounds for an objection to my question
7 and I think you should be allowed to put the question. In fact I've
8 forgotten now if the witness has even answered the question because there
9 has been five minutes of objection.
10 JUDGE MOLOTO: Mr. Milovancevic, you haven't given me a ground of
11 objection and I would like you to give it each time you stand up you must
12 give a ground of objection before you address the ground. Because you say
13 things that you shouldn't be saying. You say things that should be said
14 by the witness. You've contradicted what this witness has been saying. I
15 don't know why you do it and I've warned you time and time and again not
16 to testify. Now, you're going to give me a reply and you're going to be
17 very succinct and you're going to be very relevant and if you're not, I'm
18 going to stop you and rule. Just reply to what Mr. Black has just said.
19 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.
20 I, in the translation received he said and reiterated three times,
21 I'm not him. I'm the Defence counsel for the Defence. That's one thing.
22 Other thing, I lodged an objection, because recently just a minute ago, an
23 examination was led, written exhibit, that whereby military court states
24 that they were accused, which means in the legal terminology that they had
25 been brought before a court. And now the OTP says that these people were
1 not legally processed. This is the gist of my objection.
2 JUDGE MOLOTO: Can we have a look at that military report again,
3 please? Let's see whether there is an indictment in it or whether it's a
4 statement. I don't know what --
5 MR. BLACK: The statement is the document on our screen right in
6 front of us, Your Honour.
7 JUDGE MOLOTO: Can we go to the first page?
8 JUDGE HOEPFEL: Defence counsel referred to Exhibit 972. It's the
10 MR. BLACK: Ah, 972.
11 JUDGE MOLOTO: Could we have Exhibit 972 on the screen, please?
12 MR. MILOVANCEVIC: [Interpretation] On page 2, fourth row, which
13 refers to Damir Travica and the accused Kovacevic, before it appears on
14 e-court, it states that they are charged with murder for -- pursuant to
15 Article 47.
16 JUDGE HOEPFEL: In English it would be page 2, point 2. I think
17 this is what counsel is referring to.
18 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours. That
19 is correct. In the B/C/S, it's page 2, where the text is.
20 JUDGE MOLOTO: If you look at page 1, I would like somebody to
21 tell me whether this looks like an indictment or is it a letter addressed
22 to somebody? Just looking at page 1. Before we go to page 2.
23 MR. MILOVANCEVIC: [Interpretation] Your Honours, as I mentioned
24 this document, as far as I understood my colleague the Prosecutor and as I
25 remember this was a response of the military court and the authorities of
1 Yugoslavia to a request of the OTP, and this letter deals with certain
2 topics according to the OTP's request, and the data on the accused
3 Kovacevic are actually on page 3 in fact.
4 JUDGE MOLOTO: It's not page 2 any longer, it's page 3 now.
5 Should I go to page 3?
6 MR. MILOVANCEVIC: [Interpretation] Yes, please, so I apologise.
7 So now we have page 1. Could we have page 3? That is the page which
8 contains the text which the OTP presented to the witness. It speaks about
9 the accused Kovacevic. That is the only text we dealt with apart from the
11 JUDGE MOLOTO: Right. And that text says, and I did ask questions
12 about it, due to the lack of competence, the case was forwarded to the
13 county court in Knin. So this Court that is reporting to the OTP is
14 telling the OTP that it had no competence. So they forwarded the case to
15 Knin and in the military court in Banja Luka, and the case was filed under
16 the reference number IK number 141 of 1992. We don't have any information
17 on how this case was finalised. Okay? And I want to add that this
18 offence was qualified according to the -- now I'm told the Criminal Code
19 of the RSK because Croatian criminal law was not recognised at that time.
20 You tell me, where is it here that it's talking about charging the person?
21 Where is the indictment here?
22 MR. MILOVANCEVIC: [Interpretation] Your Honour, in line 4, you
23 have a text where it is stated, at least in the B/C/S, you have Kovacevic,
24 Slobodan and his particular and then Travica, Damir and his particular,
25 and it says the accused are, because of a brutal -- the criminal offence
1 of murder from Article 47 and so on.
2 JUDGE HOEPFEL: This is something else than what is being
3 translated here, on page 3 of the English. It is actually starting on
4 page 2. Otherwise we cannot understand that. This is why he said page 2.
5 MR. MILOVANCEVIC: [Interpretation] Your Honours. Thank you, Your
6 Honours. If you can assist me, yes, I'm looking at the B/C/S text. In
7 the English, that particular text started on page 2. So the report under
8 item 2 is in the fourth line in the B/C/S. In English it is probably the
9 end of the second page. I apologise.
10 JUDGE HOEPFEL: We have the second page.
11 MR. BLACK: Your Honours, perhaps I can be of assistance. Perhaps
12 not. I assume what counsel is talking about is at the bottom of page 2 in
13 English and it says that they, meaning Slobodan Kovacevic and Damir
14 Travica, they are charged with murder from Article 47 paragraph 2 et
15 cetera. But as Judge Moloto pointed out at the end, it talks about this
16 case getting bounced all around. And my specific question that was
17 objected to was that other than in absentia trial in Croatia in 1993, I
18 said these two perpetrators, neither of them have ever been put on trial
19 for this crime, have they? And that's at page 56, lines 18 to 21. So
20 whether or not they were charged in one place and then bounced around, the
21 question was about whether or not they actually went to trial.
22 MR. MILOVANCEVIC: [Interpretation] Your Honours, this is a matter
23 of translation. In the B/C/S, the word "accused" or "charged" means a
24 person charged with a specific criminal offence. In this case it is
25 murder, and against which an indictment had been issued before the
1 competent OTP and submitted to the competent court. So this translation
2 into English is inaccurate, incorrect, in fact. Because the report of the
3 military authorities states --
4 JUDGE MOLOTO: Mr. Milovancevic, in B/C/S, does the word "charged"
5 mean tried?
6 MR. MILOVANCEVIC: [Interpretation] Charged is not the same as
7 convicted. Charged or accused --
8 JUDGE MOLOTO: I'm talking about tried. Does the word "charged"
9 mean tried? Did you go into court, answer the charge, evidence led
10 against you, you lead evidence against the case of the Prosecution, and
11 the trial goes to finality? Does charged mean tried?
12 MR. MILOVANCEVIC: [Interpretation] Your Honours, I cannot answer
13 with a yes or no. I'll tell you what charged exactly means, that an
14 indictment has been issued before the competent court before a -- that
15 person. And an indictment can be filed only before a court. It cannot
16 exist anywhere in the police or any other organ. It can only exist before
17 a court. A charged person is a person before court. Now, whether the
18 trial has been finalised, as this report states, we have no data about
19 that, except --
20 JUDGE MOLOTO: That is what Mr. Black is trying to establish from
21 this witness, whether the trial was ever finalised. In fact, not whether
22 it was ever finalised. He's putting it to him that no trial was ever
23 undertaken except the fact that they were tried in absentia in Croatia
24 which is something different from the word charged, Mr. Milovancevic. You
25 can be charged but never be tried.
1 MR. MILOVANCEVIC: [Interpretation] That is incorrect, Your
3 JUDGE MOLOTO: Well, okay. Can we see, in the B/C/S, and can you
4 explain to us what it says, Mr. Milovancevic, at page 3? Can you tell us
5 at page 3 where the English says, "We don't have any information on how
6 this case was finalised, and I want to add that this offence was qualified
7 according to the CC of the RSK because Croatian criminal law was not
8 recognised at the time." Just tell us what it says in the B/C/S there.
9 MR. MILOVANCEVIC: [Interpretation] That means, Your Honours, that
10 this military court, responding to the OTP's request, has no date whether
11 a ruling, a verdict has been handed down or not. So this is a court in
12 another country, in Serbia. They don't know whether a judgement had been
13 handed down and brought in Knin. That is all that it means. But it does
14 mean, this report, that a proceeding had been conducted before a court
15 pursuant to a filed indictment.
16 JUDGE MOLOTO: How do you get it from that proceedings had been
17 conducted? Mr. Milovancevic, I'm asking you a question and I would like
18 you to concentrate on what I'm asking you. Where do you get it from that
19 proceedings were conducted before a court? Pursuant to a filed
20 indictment. And where is the indictment?
21 MR. MILOVANCEVIC: [Interpretation] Your Honours, that is the
22 reason why my objection was so lengthy. Because my learned colleague, the
23 Prosecutor -- actually, the indication in the reports that people have
24 been charged with the criminal offence of murder cannot mean anything else
25 under the law but that an indictment had been filed against them with the
1 statement of offence, which is given here in Yugoslav law. When you say
2 charged, accused --
3 JUDGE MOLOTO: And I think I'm going to rule and I overrule your
4 objection because you just don't tell me anything from this document that
5 says that this matter was finalised in any court in the RSK or anywhere
6 else. And I think this witness can answer yes or no or I don't know to
7 the question. It's a very simple question.
8 MR. BLACK: Thank you, Your Honour.
9 Q. Witness, let me repeat the question to you because it's been a few
10 minutes now. In fact, I'll change it slightly, hopefully to accommodate
11 for the apparent confusion of Defence counsel. Other than being tried in
12 absentia in 1993 in Croatia, neither of these two men, Slobodan Kovacevic
13 or Damir Travica ever went through trial proceedings which resulted in a
14 verdict of guilty or not guilty in the RSK, did they? That never
16 A. Whether there was a verdict, I don't know that. Whether
17 proceedings had been instituted, yes, surely. This was conducted before a
18 court organ. Probably Croatia, which undertook to prosecute these persons
19 in 1993 filed these complaints, criminal complaints, which did that on the
20 basis of the criminal complaints filed in the RSK. Now, how these
21 proceedings ended, I don't know.
22 Q. This is pure speculation, isn't it? The idea that Croatia is
23 basing its indictments on RSK indictments or something, you don't know
24 anything about that, do you? You're just sort of making that up.
25 A. Well, you tell me on which basis could Croatia have investigated
1 that matter when they didn't have control of RSK territory? In which way
2 did they investigate it themselves?
3 Q. Let me stop you right there. You see it's not my job to tell you
4 anything. I put the questions and you give -- you try to give the
5 answers. You can say yes, you can say no, you can say I don't know. But
6 your job is to try to give answers. We talked about this yesterday.
7 So I'm going to put the question again and please try -- if you
8 have to give a short explanation you can, but please try to say yes or no
9 or I don't know. And the question is: These two men who we have been
10 discussing, they were never -- they never went to a trial that reached a
11 verdict for these crimes in the RSK, did they? Yes or no or you don't
13 A. You are contradictory again. Please be concrete. Did the trial
14 start? Did they appear before court? I keep saying that they were
15 processed as such and whether they have been convicted, that is something
16 that I don't know. And these are two different actions and you, as the
17 Prosecutor, should be aware of that. The contradiction is that I keep
18 saying one and the same thing. The competent organs of the Republic of
19 the Serbian Krajina processed them as such, namely they filed a criminal
20 complaint against them and they were brought before court. And the trial
21 started in that sense and I really don't know whether it is concluded.
22 That's what I've been saying.
23 JUDGE MOLOTO: Processing can mean anything. I think the
24 Prosecutor is asking you a specific type of processing, whether they have
25 been into a trial which was concluded by a verdict. Now, I hear that you
1 have said now that you say the trial started in that sense and I really
2 don't know whether it is concluded. I don't know whether that answers the
3 Prosecutor or not.
4 MR. BLACK: I think we've gotten as far as we can on that
5 particular thing. Perhaps we should take the break and I'll put a couple
6 more questions after.
7 JUDGE MOLOTO: Thank you very much. We will take a break and come
8 back at quarter to 6.00. Court adjourned.
9 --- Recess taken at 5.18 p.m.
10 --- On resuming at 5.46 p.m.
11 JUDGE MOLOTO: Yes, Mr. Black.
12 MR. BLACK: Thank you very much, Your Honour. I'm going to move
13 on to a new topic. There is a lot of ground to try to cover.
14 Q. Witness, moving on to the general subject of negotiations, Milan
15 Martic was opposed to any peaceful solution to the conflict that did not
16 include independence for RSK, independence from Croatia, correct?
17 A. No. You are not right. Milan Martic wanted to resolve the issues
18 of the Serbian people in accordance with the constitutional solutions of
19 Yugoslavia. In this sense he accepted the Vance Plan from the very
20 beginning as opposed to some people who did not want to accept it.
21 Q. Well, that's just wrong, isn't it, because he opposed the Vance
22 Plan at the beginning. It wasn't until Slobodan Milosevic persuaded him
23 to support it that he actually accepted the Vance Plan; isn't that right?
24 A. Mr. Prosecutor, I don't know why, but you are telling falsities.
25 Mr. Babic was against the Vance Plan and Mr. Martic was that one who tried
1 to convince the people of Krajina of the RSK that the Vance Plan should be
3 Q. Well, let's look at a couple of Mr. Martic's public statements.
4 The first one bears the ERN 02642942. If we could see that on the
5 e-court, please. And the article that we are going to focus on is the one
6 that's titled, "Martic on the Krajina Police, operation in Ljubovo,
7 unification of Krajinas." And it's from Novosti, dated the 7th of July
8 1991. Do you see that part there?
9 A. I can't see the date but I have no reason to doubt what I see.
10 Q. Okay. It's the -- there at the top and it --
11 JUDGE HOEPFEL: At the bottom, the date, you can scroll down to
12 the bottom.
13 THE WITNESS: [Interpretation] Yes, it can be seen now, yes.
14 MR. BLACK:
15 Q. Okay. Thank you. Recall back with me. On Friday you were
16 talking about I think your experience in Zagreb and you talked about a
17 Croatian leader, I think you said he was an associate of Tudjman, who made
18 some comment about the heights of Croats versus the heights of Serbs. Do
19 you remember talking about that?
20 A. Yes.
21 Q. Let's look at the beginning of this article. I'm going to have to
22 ask for your help to find it. If we scroll up on the B/C/S, I believe
23 this is the part right there that starts off in bold, and then kind of
24 continues down. I think it's in that bold part.
25 And it says there -- follow along with me if you can. We might
1 need to -- if we can zoom in a little bit more on the top left-hand corner
2 I think it would be easier for the witness to follow. That's good. Thank
3 you. It's the second sentence and it says there, "At the same time, he"
4 meaning Milan Martic "denied reports that Croatian policemen wore uniforms
5 with fake insignia in the attack on Dvor Na Uni and Kostajnica. It says
6 they can have similar insignia on uniforms but people will always know who
7 they are. Our uniforms are worn by tall, robust Krajina men whose average
8 height is 185 centimetres. There are no such men among the Croatian
9 police." Do you see that, where he says that?
10 A. Yes, I can see.
11 Q. On Friday, you described the -- very strikingly, I would say,
12 similar comments of that Croatian leader as racial discrimination. So I
13 guess you'd agree with me that these comments by Milan Martic in July of
14 1991 also constitute racial discrimination; is that right?
15 A. I will not agree with you because I know Mr. Milan Martic and I
16 know that he never spoke in this vein. Quite the contrary. I can also
17 tell you another thing. This is not a quote. I don't know which context
18 this was issued in. This was an article. I said that at a meeting in
19 Sinj, person delegated from President Tudjman spoke of such things. If
20 this was uttered, I don't know whether -- in which context it was said.
21 Maybe in a pejorative sense, maybe some moral support was tried to be
22 offered, although I personally do not accept any forms of painting a black
23 picture of anybody else. But on the basis of what I do know, is that Mr.
24 Milan Martic never in his life, and in his work and in his work within the
25 Ministry of the Interior, asked that anything be committed against any
1 other peoples and that we always insisted for perpetrators of crime to be
2 identified and this would be contrary to that.
3 Q. Sir, you got a long ways away from my question there in your
4 answer, so I'm just going to ask you please to try to focus because we
5 need to cover some ground here.
6 I would like to ask you about another passage from this same
7 article. It's on the second page in English, Your Honours, and I believe
8 that we will be able to find this at the bottom of the left-hand side in
9 B/C/S. If we could scroll down, and, sir, we are looking for the part
10 that says, I think it's actually down just all the way at the bottom,
11 starting off, "Justifying the operation in Ljubovo of four days ago Martic
12 said the area was a part of Lika in the territory of SAO Krajina and that
13 the Krajina SUP would implement the ultimatum of the Krajina government
14 and expel all Croatian MUP units from the area." It continues, "The
15 operation in Ljubovo was just a warning. We will certainly carry out the
16 ultimatum and expel everyone whom the people describe as intruders, Martic
17 said, noting that the JNA was -- noting cooperation with the JNA was
18 excellent, Martic said they had the same goals, to defend a people who
19 clearly expressed its will at a referendum on 12 May that it wanted to
20 join Serbia, Montenegro and the others who wanted to live in Yugoslavia."
21 Sir, that doesn't sound like someone who is interested in a
22 peaceful solution, does it? That sounds like someone who wants war.
23 A. Is that a question or is that your statement?
24 JUDGE HOEPFEL: Witness, you are always asked questions. As you
25 are a witness.
1 MR. BLACK:
2 Q. It was intended to be a question and my question was: That does
3 not sound like someone who is interested in a peaceful solution, does it?
4 It sounds like someone who wants war. Do you have any response to that?
5 A. This is certainly not so. I can prove that in many ways.
6 Q. That's okay. We noted your disagreement.
7 Just one more passage and I believe this will be found at the top
8 where the article continues, towards the top of the page. If we could
9 scroll over to the right a bit as well. I hope you can find this okay,
10 sir. It's a paragraph that starts -- it says, "Commenting a decision of
11 the BH assembly not to recognise the declaration on unified Krajina." Do
12 you see that part?
13 A. I do see, yes.
14 Q. Okay. And it continues, it says, "Martic said that that did not
15 worry him. Unification of the Krajinas is the will of the people. Where
16 on earth do you have a single nation divided by borders is the case with
17 Serbs who have been bordering each other in these parts". And this is
18 another reference to the idea of unification of Serb lands I think we
19 talked about yesterday, right?
20 A. Here, Mr. Martic, if I may comment, this is a period when I wasn't
21 here, but as far as I can understand, the text, whether I understand it or
22 not, I believe that this refers to the self to -- right to
23 self-determination of a people which was guaranteed both by the Yugoslav
24 and Croatian constitution, to all -- granted to all the peoples.
25 Q. Thank you.
1 MR. BLACK: Your Honours could this be admitted into evidence,
3 JUDGE MOLOTO: The document is admitted into evidence. May it
4 please be given an exhibit number.
5 THE REGISTRAR: Your Honours, this becomes Exhibit number 973.
6 JUDGE MOLOTO: Thank you very much.
7 MR. BLACK: Your Honour, while we are on the topic of admitting
8 things in evidence, I'm helpfully reminded I forgot to ask for the last
9 document with ERN 02007205 and continuation to be admitted. That was the
10 record of the statement of Slobodan Kovacevic which we talked about for
11 sometime. Could that also be admitted into evidence, please?
12 JUDGE MOLOTO: The document ERN 02007205 to 7212 is admitted into
13 evidence. May it please be given an exhibit number.
14 THE REGISTRAR: Your Honours, this becomes Exhibit number 974.
15 JUDGE MOLOTO: Thank you very much.
16 JUDGE HOEPFEL: Excuse me, isn't this a small -- okay. Wasn't 973
17 the military report? No?
18 [Trial Chamber and registrar confer]
19 JUDGE HOEPFEL: Okay. Thank you.
20 JUDGE MOLOTO: So Mr. Milovancevic, could you attend to Mr.
21 Martic, please?
22 [Defence counsel and Accused confer]
23 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. Mr.
24 Martic asked the Chamber to notify the guard whether he is allowed to send
25 notes to me and the guard is not aware of this practice, whether this is
1 allowed or not. This is what Mr. Martic wanted to have resolved. He had
2 a note for me but the guard refused to hand it to me. He doesn't know
3 what to do because he doesn't know the rules.
4 JUDGE MOLOTO: I don't know the rules myself, but I just want to
5 say for the record that practice in our Trial Chamber here has been that
6 the security officers do assist Mr. Martic by passing on the papers to his
7 lawyers. He's sitting so far away from them and -- but even when he's
8 sitting near there is not near enough to pass on the papers himself so we
9 would appreciate if the security could help by passing the papers. Thank
10 you very much.
11 Thank you, Mr. Milovancevic.
12 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.
13 JUDGE MOLOTO: Yes, Mr. Black.
14 MR. BLACK: Thank you, Your Honour.
15 Q. I'd like to continue and move to another document. If we could
16 look at ERN 02642948, please, on the e-court. And I realise this may take
17 an extra minute or two because the usher is away on other business but
18 hopefully the court officer can handle both jobs. Thank you.
19 Witness, this is an article from Pobjeda also dated the 7th of
20 July 1991 and it's titled, "We are prepared for war." I just focus your
21 attention -- actually, if we could maybe zoom in on the beginning of the
22 article which is on the left-hand side of the page there, and it says,
23 it's dated Knin 6 of July actually. And there is a question in bold and
24 underlined which says, "The JNA is Knin and in a way constitutes the
25 bridge head between the warring parties in Krajina." That's a question.
1 And then the answer, which is apparently from Mr. Martic is called a
2 Martic interview, Mr. Martic responds, "The army is here with us and the
3 people in Knin is the safest place for it to be. Cooperation with the
4 army is excellent. The army knows how the people feel. We help each
5 other and if necessary we will defend ourselves together." And he
6 continues. And then the next question it says, "Military hardware,
7 weapons and equipment, are they joint as well?" And he says, "Yes at the
8 given moment they are joint as well. Since we know our mutual enemy is
9 this Ustasha state which does not wish us or the JNA any good."
10 And my question is the same as the last article we looked at, this
11 doesn't sound like someone who is pursuing peaceful solutions, it sounds
12 like someone who is ready for war, doesn't it?
13 A. This sounds as somebody who is ready to defend his own life, and
14 if it's necessary to wage war for that purpose, then this was said in that
16 Q. Okay. And continuing down the article actually, I believe it
17 should be the next question and answer, it says, "It has been a year since
18 the Krajina SUP rejected the authority of the legitimate Croatian
20 A. I apologise. I apologise. If you can scroll the text up, please.
21 Q. Yes. Thank you for bringing that to our attention. I apologise.
22 There you go. Hopefully you can see now. It starts on that left-hand
23 column and continues.
24 It says, "It has been a year since the Krajina SUP rejected the
25 authority of the legitimate Croatian authorities. How do you assess your
1 first year of working independently?" And Martic responds, "It is a
2 honour for us not to be serving Tudjman and his clique. We are now
3 practically at war with the authorities. We are not sorry because ours is
4 a just struggle for the defence of our people."
5 And the question is there again, this clearly states doesn't it
6 that Martic considers them -- himself and the RSK practically at war with
7 the authorities and that he's not sorry about that. Isn't that correct?
8 A. This indicates that he's not sorry that things are as they are, in
9 terms of defending the legitimate interests of the Serbian people. One
10 has to understand the context why he said that and you do not ask me about
11 why this was said and this is the only way that you can understand the
12 meaning of this sentence.
13 Q. Well --
14 JUDGE MOLOTO: Let me just remind you once again, Witness, you
15 don't choose the questions that you're asked. You're asked the questions
16 that are asked by the Prosecutor and you answer those questions. Okay.
17 That's why we don't bring you here and ask you just to tell us what you
18 wish to tell us. We have people asking you questions because they want to
19 get what they want.
20 Mr. Black?
21 MR. BLACK: Thank you, Your Honour. And Witness, again, I
22 certainly know that you may not be familiar with our procedure here but
23 Defence counsel for Mr. Martic will get another chance to ask follow-up
24 questions to you. So if he thinks it's important to ask you about the
25 context or other things, he'll have the chance to do so. Please try to
1 just focus on my questions. Your Honours, could this document be admitted
2 into evidence, please?
3 JUDGE MOLOTO: The document is admitted into evidence. May it
4 please be given an exhibit number.
5 THE REGISTRAR: Your Honours, this becomes Exhibit number 975.
6 JUDGE MOLOTO: Thank you very much.
7 Yes, Mr. Black?
8 MR. BLACK: Thank you, Your Honour.
9 Q. Witness, Mr. Martic's attitude towards peace didn't change after
10 July 1991, in these documents that we've seen. And I guess while we've
11 disagreed about what his attitude was, let me put it to you that in 1992
12 and 1993 and actually until 1995, Mr. Martic was never interested in
13 finding a peaceful solution unless that solution included independence for
14 the RSK; isn't that right?
15 A. I know that the situation was different, namely, Mr. Martic was
16 always aspiring after a just solution to the situation of the Serbian
17 people. That that presupposed the separation of the Republic of Serbian
18 Krajina from Croatia, so be it.
19 Q. Well, in your point of view, did that presuppose the separation of
20 the RSK from Croatia? Did you feel there was no just solution for the
21 Serbian people except for independence?
22 A. The Republic of the Serbian Krajina recognised the Vance Plan even
23 though it was not its signatory and it worked to reach a peaceful solution
24 to the dispute undertaking a series of diplomatic activities and talks and
25 negotiations to that end, and sought to reach optimal solutions that would
1 be satisfactory to both sides of course.
2 Q. Shall I continue, Your Honour? Thank you. Sir, I think it's
3 clear that we have a different view of that. But let me ask you about
4 something specific. In 1993, when the Vance-Owen plan was being
5 negotiated in Bosnia-Herzegovina, Milan Martic and others in the RSK, they
6 urged the Republika Srpska to reject the Vance-Owen plan, didn't they?
7 A. I do not remember that. I really don't. Not even the elements of
8 the Vance-Owen plan.
9 Q. Okay. Let me make it more clear. Let me show you a document.
10 It's from the Prosecution 65 ter list, it's number 1386. If we could see
11 that on the e-court, please. Thank you. If we could -- if you first just
12 look at the -- focus on the top half of the document. Sir, you'll see
13 that this is a document, a kind of letter it appears to be, which is --
14 sorry for the interruption. This is a document addressed to the assembly
15 of the Republika Srpska, and if we could just briefly look at the last
16 page, you'll see I think that it's signed by Milan Martic and a few other
17 people. If we could focus in on the top signature. It may be hard to see
18 with the stamp but I think it will be clear. Can you make that out,
19 Witness, that that says minister Milan Martic and then there is a
20 signature and a stamp there?
21 A. Yes, I can make it out.
22 Q. Thank you. If we go back to the first page, then, please? Just
23 want to look at a couple of passages from this document. If we could just
24 focus in on the second and third paragraphs there. I think that actually
25 should be fine if we could scroll down a little. Thank you.
1 In that second paragraph, the second sentence, I'll just read out
2 that second sentence and then the following sentence for the next
3 paragraph. It says, "Although we have always won wars, surrounded by
4 domestic and foreign factors, we have" -- this is talking about apparently
5 the Serbs -- "we have accepted political compromises always to our own
6 detriment because of our extreme humanity. Gentlemen, deputies of
7 Republika Srpska, at this historical turning point, it is time for the
8 Serbs to learn their lesson and make the most rational decisions that will
9 be of historical significance." And then if you actually scroll down to
10 the numbered points there, I won't ask to read them out but it's clear
11 from that that what this document is urging is that the negotiated
12 settlement be rejected; isn't that right?
13 A. Can you clarify that for me? I don't see on what you base that
15 Q. Well, it was based on what I just read out about this idea. Let
16 me just ask you a question about that. That was Milan Martic's view,
17 wasn't it, that political solutions had always led to negative outcomes
18 for the Serbs or the Serb people in Croatia, and so that's why he
19 preferred war, which he said they had always won. That was his position
20 then, wasn't it?
21 A. Mr. Prosecutor, you are quite wrong. You're absolutely not right.
22 The meaning of this sentence is quite different. It means that the Serbs
23 as such or Serbian politicians and negotiators were always more inclined
24 to accept some solutions which would suit the other side than they were,
25 and Mr. Martic was advocating that that not be so in the future and that
1 they should defend the Serb people to the end, and if necessary, also by
2 military means. It was not the -- actually the intended idea that it
3 should be so, but in such circumstances, it should be an option.
4 Q. Okay. So under the circumstances as he saw it and as you just
5 described, Milan Martic was saying, "We should fight rather than accept
6 this negotiated peace plan," right?
7 A. I don't see where that is written.
8 Q. Well, I was just asking you about that sentence which I had read
9 out and that's the way I understood your explanation. You said he wasn't
10 saying that it should be -- the circumstances should be like this but that
11 in such circumstances, they should defend the Serb people to the end
12 rather than accepting a political compromise, which he said they didn't
13 work out well for them. Am I making myself clear?
14 A. You were not quite clear to me, but I shall try to say in one
15 sentence to respond to what I think you're interested in. The way I
16 understand it, and I'm also interpreting this letter, but on the basis of
17 my knowledge of the history of the Serbian people and the vocabulary of
18 Mr. Martic, this is about the Serbian people once and for all stopping to
19 yield to pressures and to losing all the legitimate rights that it is
20 entitled to, rights that are vested in all and one of the universal rights
21 that everyone is entitled to is the right to freedom.
22 Q. Okay. I think I understand your position. If you could just look
23 on the screen now towards the bottom of the page you see a numbered
24 paragraph 3. And just so that it's clear, it says there if you decided
25 not to accept the maps offered by failed western politicians, the creators
1 of the new world order, despite all the threats, we shall share the same
2 fate, jointly resist the Croatian and Muslim fascists and finally
3 determine our borders. And so having seen that, it's clear that this
4 document is urging Republika Srpska not to accept the Vance-Owen plan,
5 right, but to fight along with the RSK?
6 A. As far as I can understand that sentence, and you said that this
7 document referred to the Vance-Owen plan, it deals with that situation, on
8 the one side we have Croatia, on the other side we have Republika Srpska,
9 and Serbia, then there are also the UNPROFOR forces, the UN forces, and
10 none of them is doing their job properly, and it is in that sense that we
11 need to give serious thought to all these issues. Having in mind the
12 experiences theretofore, the suffering of the Serbian people in the
13 protected zones up to that point, that is the position that they should
14 take, and that is how I interpret this document.
15 MR. BLACK: Could this be admitted into evidence, please, Your
17 JUDGE MOLOTO: The document is admitted into evidence. May it
18 please be given an exhibit number.
19 THE REGISTRAR: Your Honours, this becomes Exhibit number 976.
20 JUDGE MOLOTO: Thank you very much.
21 MR. BLACK: Thank you, Your Honour.
22 Q. Witness, in 1994 and 1995 -- early 1995, Milan Martic refused to
23 consider the so-called Z-4 plan, correct?
24 A. No that is not correct. He rejected it. He did not refuse to
25 consider it. And the reasons why he rejected it are important.
1 Q. Well, the reason that he gave for rejecting it was that he wanted
2 the UNPROFOR mandate to be extended, right? That's the reason that he
3 stated as to why the Z-4 plan was unacceptable. He didn't even want to
4 consider it until he had assurances UNPROFOR's mandate would be extended.
5 Is that the reason he gave?
6 A. Possibly that was one of the reasons but it was not the principal
7 reason. The content of the Z-4 plan and its form were the main reasons,
8 and actually the form he had was a trap by those who had written it. It
9 was just a bait, something intended for public use but they were clearly
10 aware that it could not resolve the problem, and that the Serbian side
11 would indeed reject it. So they were in advance offering something that
12 they knew was unacceptable to them. And the reasons why that was so, if
13 you want me to say what I think they were --
14 Q. No. I think that explanation you've given is fine. I don't want
15 to dwell on this too much. Wasn't really the biggest reason of all why
16 Martic rejected the Z-4 plan is because that's what Slobodan Milosevic
17 wanted him to do? That's what he told him to do was reject it?
18 A. I know another reason why he rejected it, not that one. And I
19 shall be glad if you allow me to say what that reason was.
20 Q. Please, if you can do so, relatively briefly, please explain.
21 A. It would require some ten sentences or so. I want to be
22 picturesque. Why was Z-4 as such a trap, a plant trap for the leadership
23 of the Republic of the Serbian Krajina, a document offered that they knew
24 in advance would be rejected as such? A very short story which will
25 corroborate all that I'm saying and it is a true event. In the Second
1 World War, in Serbia, after some German soldiers had been killed, the
2 Germans retaliated in a village. In that village they rounded up all the
3 males, younger people mostly, and they were taken to be executed. Among
4 them there were two sons of a father. The father begged the German
5 officer to let his children go, that they were not to blame for what had
6 happened. The German officer laughed a bit to that and said that he, as
7 their father could decide between Jovan and Marko, which one of them would
8 be spared. The father was to say Jovan will live or Marko will live. The
9 father was brought into a position of having to choose between his two
10 sons, and to repent and be tormented by his decision for the rest of his
11 life. That officer brought him in a planned fashion. This is a very
12 sadistic thing, into this situation, of having to make such a terrible
13 choice and both were executed because the father could not take a
14 decision. I'm reverting to Z-4 immediately.
15 Q. Okay. If -- I understand, I guess, I think why you wanted to tell
16 a little bit of a story by way of explanation. But if you have a couple
17 more sentences about the Z-4 plan directly, you can say those, otherwise,
18 I'm going to move to my next question, okay?
19 A. I'm concluding and that is the point I wish to make, that is why I
20 begged for your understanding. Z-4 offered a solution and an alleged
21 solution to the leadership of the Serbian Krajina at a time when they had
22 territory in which the Serbs were indeed a majority, Eastern Slavonia,
23 Baranja, Western Slavonia, Banija, Kordun, Lika, it was being offered only
24 two areas, two counties, that meant that the leadership of the Serbian
25 Krajina should have opted between two children and that was this
1 impossible decision which was being offered to the leadership of the
2 Serbian Krajina and that was the basic reason why the document could not
3 be accepted. Had it referred to the entire territory in terms of
4 [indiscernible] it would have been given quite different consideration and
5 would have been accepted probably.
6 JUDGE MOLOTO: Can I just say this? If you are asked a question,
7 please answer directly to the question, don't give a way of story because
8 you give a long story and then when you are stopped you say no, no, no I'm
9 getting to the point. If you can't get to the point in the first word,
10 then just don't get to the point at all. And we will stop you henceforth
11 because we want to finish, okay? We don't have all the time to listen to
12 stories. They may be very interesting from a historical point of view but
13 we are not doing history here, we are just trying to adjudicate on the
14 legal issues. Thank you.
15 MR. BLACK: Thank you, Your Honour.
16 Q. Hopefully one question to round out the Z-4 plan and I'll move
17 directly on. Sir, let me know if I've understood you correctly. I think
18 you're saying that the Z-4 plan was from the beginning unacceptable
19 because it didn't entail the independence of the entire RSK. It was -- is
20 that the reason why you say the Z-4 plan was unacceptable and why Mr.
21 Martic was against it?
22 A. I said that that plan represented a planned trap, in terms of
23 offering a document which was unacceptable because it did not entail the
24 whole territory of the RSK, not even 50 per cent of it, not by far.
25 Q. Okay. Thank you. And you testified, didn't you, that on the eve
1 of Operation Storm, Milan Babic actually agreed then to the terms of the
2 Z-4 plan in an effort to avoid an attack by Croatia, correct?
3 A. Yes.
4 Q. But even at that stage, Milan Martic was still opposed and
5 continued to oppose the Z-4 plan, correct?
6 A. No. As a delegation and a member of the delegation which went to
7 Geneva to negotiations those days, it wasn't presented in that way. In
8 Geneva we accepted Mr. Stoltenberg's proposal for talks to be held on that
9 plan on the 10th of August in Knin and 17th of August in Zagreb.
10 Q. I'm going to get it to that in just a few movements, but let me
11 stick with the chronology for the time being.
12 You testified on Friday a little bit about negotiations on the --
13 the first second and third of May 1995, at the same time as Operation
14 Flash. And I just want to have one point of clarification and perhaps
15 this was a misunderstanding but you said that part of the cease-fire
16 agreement which was reached on the 3rd of May 1995, was that the Croatian
17 forces would withdraw to their starting positions. But Croatia never
18 agreed to such provision, did it?
19 A. It is true, but I don't know all the details because Mr. Mikelic
20 took over that part of the work. What was said that military activities
21 would cease and that after that UNPROFOR forces would be in a position to
22 act in that area. It did not happen and as late as the 7th of May, first
23 groups of UNCIVPOL were allowed to enter the territory of Western Slavonia
24 after that agreement was signed.
25 Q. Okay. But Croatia never withdrew to its positions prior to
1 Operation Flash, right? After Operation Flash they stayed in Western
3 A. Yes.
4 Q. When Croatia attacked Western Slavonia, Milan Martic's immediate
5 reaction was not to try to seek a negotiated solution, it was actually to
6 react with force; isn't that right?
7 A. His reaction, as far as I could understand it, was to protect his
8 people, and that was a moment and I would like to remind you of that, when
9 Croatian forces attacked a protected area, when UNPROFOR forces did not
10 react, and when Yugoslavia, which was a guarantor of the Vance Plan did
11 not react.
12 Q. I apologise. I'm just going to interrupt you because you told us
13 about this in your direct examination, so it's not necessary to repeat it.
14 Could we go very briefly into private session, Your Honour?
15 JUDGE MOLOTO: May the Chamber please move into private session?
16 [Private session]
11 Pages 9598-9609 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we are back in open session.
9 JUDGE MOLOTO: Thank you very much. Yes, Mr. Black?
10 MR. BLACK: Thank you.
11 Q. Sir, there is a code cable from Gavin Hewitt who was the British
12 ambassador to Zagreb in 1995. And the date of the cable is the 3rd of
13 August 1995. And if you could -- well, I'm going to ask you about a
14 passage in paragraph 7 which appears on page 2 of the document. It makes
15 a reference to Galbraith speaking with Babic but then the sentences that
16 I'm focused on --
17 JUDGE MOLOTO: I'm sorry to do this to you, Mr. Black. Is it only
18 me? I'm getting a B/C/S version on my screen.
19 MR. BLACK: Your Honour, I have it in English on the main screen.
20 JUDGE MOLOTO: On the main screen?
21 MR. BLACK: I didn't realise there was a B/C/S interpretation of
22 this. That's great. If we could show the witness the B/C/S --
23 JUDGE NOSWORTHY: I also do have B/C/S on my screen.
24 [Trial Chamber confers]
25 JUDGE MOLOTO: You may proceed, Mr. Black.
1 MR. BLACK: Thank you, Your Honour.
2 Q. At paragraph 7 there -- so I'll have to go to the second page also
3 in B/C/S on our screen --
4 MR. BLACK: Your Honour, now I think what we have on our screen
5 that the witness is seeing is not the right page. But let me just read it
6 out because it's very short and we can deal with it that way.
7 Q. Sir, in this cable from the 3rd of August it says
8 here, "Stoltenberg, however, had reported from Geneva that there was no
9 indication from the RSK delegation of any shift in their position. They
10 were certainly not talking on the lines of Babic who you've said at that
11 point was accepting the Z-4 plan. They seemed to have no new
12 instructions. And that's true, isn't it, that in substance, the RSK
13 position had not changed on August 3rd?
14 JUDGE HOEPFEL: You mean the position of the delegation?
15 MR. BLACK: Correct, the RSK delegation.
16 MR. MILOVANCEVIC: [Interpretation] Your Honour, I have an
17 objection, because in paragraph 7, actually Mr. Galbraith was heard before
18 this Court in relation to paragraph 7 and he actually said that this was
19 incorrect information, that he had not contacted Mr. --
20 JUDGE MOLOTO: Why do you want to testify? Why do you want to
21 tell us what another witness has told us when this witness is in the box?
22 MR. MILOVANCEVIC: [Interpretation] Your Honour, I'm not testifying
23 but the colleague from the Prosecution is misusing facts. I fail to
24 comprehend Your Honours. How is it possible for my learned colleague to
25 present this document before the Trial Chamber and the witness present
1 here as correct? I oppose this methodology of work, Your Honours. We
2 have established this to be an untruthful paragraph, this number 7, and
3 Mr. Galbraith has himself said that he had laboured under a misconception
4 and conveyed that information to the English ambassador under that
5 misconception. So how can I react but by saying that that was so and it
6 is completely unacceptable as a methodology, as a method of work.
7 JUDGE MOLOTO: I don't know when you established that, but
8 certainly this Court has not expressed itself on the truthfulness or
9 otherwise of this document here. But let me hear your learned friend.
10 MR. BLACK: Your Honour, if that's the Defence position, it would
11 be interesting to have a cite, because we do not remember the evidence
12 that way. I see that we are over time. Given the dispute, maybe we
13 should take a -- I had hoped to finish to my cross-examination and I'm
14 very close but maybe we should take this up tomorrow.
15 JUDGE MOLOTO: I would appreciate if you can take it up tomorrow
16 and if you can be told where it was established that this is not true,
17 because I haven't heard argument on this before and I don't know
18 whether -- I know that there was a time when I was not here. It may very
19 well be that it was argued to the Bench in my absence.
20 MR. MILOVANCEVIC: [Interpretation] Your Honour --
21 JUDGE MOLOTO: Just a second. We will take it up tomorrow. But
22 before we knock off, I just want too raise a little housekeeping issue
23 which comes up as a result of the request I made to the security officers
24 to please pass on paper to Mr. Martic's Defence counsel. It has been
25 reported to the Chamber that actually the security are under strict
1 instructions not to move away from the accused. I mentioned this to the
2 parties. Maybe we can talk about it tomorrow, just to see how we resolve
3 this in the future. Certainly, the Chamber does appreciate the need for
4 Mr. Martic to be able to communicate with his Defence, and if security are
5 under strict instructions not to move away from Mr. Martic, obviously it
6 is not going to be for this Chamber to interfere with that. We don't want
7 to interfere with that. But we've got to find some kind of modus vivendi
8 or modus operandi that can help us circumvent the problem. I leave it to
9 the parties to sleep over it.
10 Due to the lateness of the hour, the Court is going to adjourn,
11 and we will sit again tomorrow at quarter past 2.00 in --
12 MR. MILOVANCEVIC: [Interpretation] I do apologise, Your Honours.
13 I wanted to, without contact with the witness, namely we just have
14 received information that the witness has scheduled his trip back for
15 tomorrow because of commitments which are unpostponable. Can we perhaps
16 interrupt his examination and continue on some other occasion? I don't
17 know whether the witness is in a position to actually postpone his flight,
18 which is booked for tomorrow. And then again, I don't know whether it
19 would suit him to come back again. I'm just pointing out the problem.
20 JUDGE MOLOTO: [No interpretation]
21 MR. MILOVANCEVIC: [Interpretation] Tomorrow at 1300 hours, 12.55.
22 JUDGE MOLOTO: We will continue with the witness tomorrow. We
23 will continue tomorrow. The matter stands postponed to tomorrow at
24 quarter past 2.00 in the afternoon in court 1. Court adjourned.
25 --- Whereupon the hearing adjourned at 7.06 p.m.,
1 to be reconvened on Wednesday, the 18th day of
2 October, 2006, at 2.15 p.m.